REPORT AND RECOMMENDATION
JANIE S. MAYERON, Magistrate Judge.
This matter is before the undersigned United States Magistrate Judge on Frank Brain Ambrose's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 [Docket No. 1]. Respondent filed a response contending that the Petition should be denied. [Docket No. 4]. Petitioner has filed a reply. [Docket No. 7].
The matter has been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1.
Petitioner Frank Brain Ambrose ("Ambrose") is serving a 70-month sentence, followed by five years of supervised release for life, following his conviction for Conspiracy to Commit Arson in violation of 18 U.S.C. § 844(f)(1). See Declaration of Angela Buege [Docket No. 5] ("Buege Decl."), ¶ 3, Attach. A. Ambrose is presently incarcerated at the Federal Medical Center in Rochester, Minnesota ("FMC-Rochester"). Id . Ambrose's projected release date is December 23, 2013, via Good Conduct Time release. Id.
Ambrose was reviewed by FMC-Rochester staff for Residential Reentry Center ("RRC") placement on April 25, 2012, pursuant to the Second Chance Act ("SCA") of 2007 (18 U.S.C. § 3621(b)). See Buege Decl., ¶ 4. Staff recommended to the Community Corrections Manager's Office that Ambrose be given 151-180 days of home detention or RRC placement. Id., ¶ 5; Attach. B. The staff's recommendation for home detention or RRC placement was based on the following factors set forth in 18 U.S.C. § 3621(b): (1) the resources of the facility contemplated; (2) the nature and circumstances of Ambrose's offense, which was Conspiracy to Commit Arson; (3) the fact that Ambrose was sentenced within the Sentencing Commission's guideline term for the offense, 60-240 months; and (5) Ambrose's history and characteristics, including his educational and vocational participation, work performance, involvement in counseling and in release preparation programs, discipline history, prior convictions (disorderly conduct in 2000), history of violence and escape, general job and life skills, and community resources in Virginia (including a residence with his parents). Id., ¶¶ 4, 5, Attach. B. It was noted that relocation of Ambrose's supervision was required from the Western District of Michigan (where he was sentenced), to the Eastern District of Virginia (where his parents reside). Id., ¶ 5, Attach. B. Respondent Warden B.R. Jett approved the determination. Id.
On July 18, 2012, Ambrose's RRC placement was re-reviewed pursuant to his request. See Buege Decl., ¶ 6. After reviewing the resources of the facility contemplated, the nature and circumstances of the offense, Ambrose's history and characteristics, sentencing information and his available resources, FMC-Rochester staff recommended 210-240 days of RRC placement or home confinement. Id., ¶¶ 6, 7, Attach. C. The relocation of his supervision was also approved. Id . Warden Jett approved this determination. Id.
On October 31, 2012, Warden Jett completed an Institutional Referral for RRC Placement form, recommending that Ambrose receive 181-270 days of RRC placement. Id., ¶ 8, Attach. D. The referral was addressed to Erlinda Hernandez, Residential Reentry Manager ("RRM") at the Federal Correctional Complex in Butner, North Carolina. Id . But because there were no RRCs close to Ambrose's release residence of Manassas, Virginia, on December 3, 2012, his referral packet was forwarded to the RRM located in Baltimore for processing. Id., ¶ 8. The Baltimore RRM referred Ambrose for the 181-270 days of RRC placement that Warden Jett had approved. Id.
On December 11, 2012, the RRC to which Ambrose had been referred, denied his placement based on his conviction for arson. Id., ¶ 9. In its response to the Petition, the Bureau of Prisons ("BOP") indicated that this conviction was based on (1) setting fire to the Agricultural Hall at the Michigan State University; and (2) setting fire to commercial lumbering equipment. Id . Ambrose had personally poured gasoline throughout the Agricultural Hall, fashioned a crude fuse and lit the fuse, resulting in $1.1 million in property damage and requiring numerous firefighters to put their lives at risk in their attempt to control the fire. Id . Ambrose was also involved in setting fire to a John Deere Hydro-Ax Shear and a commercial flatbed trailer. Id . The BOP referenced Statement 7310.04, "Community Corrections Center (CCC) Utilization and Transfer Procedure", that provides that inmates who ordinarily pose a significant threat to the community shall not ordinarily participate in RRC programs, including inmates with a history of repetitive violence. Id., Attach. E, p. 11.
Because RRC placement was denied by the RRC, Ambrose was not allowed to participate in home confinement, as such placement would require him to return to the RRC at least twice a week for routine progress review, counseling, urine tests and other program participation pursuant to Program Statement 7320.01. Id., ¶ 10, Attach. F, attachment B, p. 2. In addition, Ambrose was not placed in home confinement because it was the RRM's practice to observe how an inmate adjusted to an RRC and its programs before he is reviewed for home confinement. Id., ¶ 10.
Following the denial of RRC placement, Ambrose pursued the required administrative remedies. Id., ¶ 11; United States' Reponses to Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 ("Govt's Resp.") [Docket No. 4], p. 12. In response to the institutional administrative remedy, Ambrose was informed that he was denied home confinement or RRC placement based on his past or present affiliation with Earth Liberation Front ("ELF"). Buege Decl., n. 5 (citing Exhibits 1 and 2 of Ambrose's Memorandum). In response to his appeal of this decision, Ambrose was informed that he was denied home confinement or RRC placement based on his history of violence. Id.
Ambrose commenced the present writ of habeas corpus action pursuant to 28 U.S.C. § 2241, alleging four grounds: (1) BOP violated 18 U.S.C. § 3621(b) by not relying on a complete RRC evaluation and by relying on his current offense, as opposed to the statements of character provided by the Government and the sentencing judge reflecting that he was no longer a threat; (2) the BOP violated the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(2)(a), by giving RRC placement to similarly convicted inmates who had been involved with arson and were affiliated with ELF, while denying him such placement based on his affiliation with ELF; (3) the BOP violated 18 U.S.C. § 3624(c)(1) by denying him the ability to re-establish himself during the last months of his imprisonment; and (4) the BOP improperly determined that he had a "history of violence" based solely on his present conviction, making its finding invalid and arbitrary. See Petition for Writ of Habeas Corpus Under 28 U.S.C. §2241 [Docket No. 1], pp. 6-8.
For relief, Ambrose seeks to be released to home confinement for the final months of his sentence. Id., p. 8.
In his supporting memorandum, Ambrose argued that under Program Statement 7310.04, which addresses RRC placement of an inmate that may pose a threat to the community, the BOP failed to properly evaluate his characteristics in determining the chance that he will recommit or otherwise harm the public. See Memorandum in Support of 28 U.S.C. § 2241 ("Pl.'s Mem.") [Docket No. 2], p. 6. According to Ambrose, the evidence supported a finding that he is no longer a threat to the community. Id., pp. 6-8. First, Ambrose pointed to the sentencing judge's statement during sentencing:
Deterrence is also important, and there are two levels of deterrence, one is specific, the other general. Only one is operative here, in the Court's judgment, and that is general deterrence of others. I'm satisfied that Mr. Ambrose has self-corrected, that he does not pose a risk of further criminal wrongdoing once he is released from his term of imprisonment. But the Court also has to be mindful of general deterrence in fashioning a sentence here that is deterring others who may contemplate similar activities in the future.
Id., pp. 6-7, Ex. 5.
Second, Ambrose relied on the Government's sentencing memorandum, stating that he had "voluntarily abandoned his violent extremism in about 2004, years before this prosecution commenced, he became a productive member of society, and he has done everything he could to make amends for his past misconduct during the course of his prosecution." Id., p. 7, Ex. 6.
Third, Ambrose offered a letter that was sent to the BOP's Office of General Counsel from the Assistant United States Attorney ("AUSA") who had prosecuted Ambrose, Hagen Frank, in support of Ambrose's appeal of the denial of his request to be placed in an RRC. Id., p. 7, Ex. 7. In this letter, AUSA Frank disagreed with the assessment that Ambrose posed a danger to the public and stated that he could not "think of any defendant I have ever prosecuted who has so thoroughly rehabilitated himself." Id . AUSA ...