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Bohrn v. Marques

United States District Court, D. Minnesota

May 3, 2018

Frank E. Bohrn, Petitioner,
Warden R. Marquez, Respondent.

          Frank E. Bohrn, pro se Petitioner.

          Ana H. Voss, Esq., Ann M. Bildtsen, Esq., Bahram Samie, Esq., Assistant United States Attorneys, counsel for Respondent.



         In this action under 28 U.S.C. § 2241, Petitioner Frank E. Bohrn contends that prison officials abused their discretion by reducing the length of his pre-release placement in a residential reentry center (“RRC” or “halfway house”). (Doc. No. 1, Habeas Pet.) For the reasons stated below, this Court recommends that Petitioner's § 2241 action be dismissed for lack of subject-matter jurisdiction, or in the alternative, be denied on the merits.


         Petitioner is a federal prisoner who, at the time he filed this action, was incarcerated at the Federal Correctional Institution in Sandstone, Minnesota (“FCI Sandstone”). (Habeas Pet. 1; Doc. No. 7, Decl. of Jon Gustin (“Gustin Decl.”) ¶ 22, Ex. B.) Petitioner was convicted of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine in the United States District Court for the Western District of Missouri. (Id.) He was originally sentenced to a 130-month term of imprisonment, but then resentenced to a 120-month term as part of the amendments to the U.S. Sentencing Guidelines. (Id.) His projected release date is February 24, 2019. (Id.) This is an early release date pursuant to 28 U.S.C. § 3621(e) for the successful completion of a Residential Drug Abuse Program (“RDAP”). (Id.)

         Inmates can be designated to an RRC as a pre-release placement at the end of their sentence. (Gustin Decl. ¶¶ 5, 8.) They also may be eligible for home confinement for a portion of their pre-release RRC placement. (Id. ¶ 5.) At RRCs, staff can help inmates with the basic needs of securing identification, employment, and housing, and provide other programs and services, such as community drug programming. (Id. ¶ 9.) In the Second Chance Act of 2008[1] (“SCA”), Congress increased the maximum allowable time for such placements by providing the Bureau of Prisons (“BOP”) with authority to grant “to the extent practicable” an inmate up to twelve months in a pre-release RRC placement at the end of the inmate's sentence. 18 U.S.C. § 3624(c)(1); (Gustin Decl. ¶ 5). The SCA also authorizes the BOP to place an inmate on home confinement for a period of ten percent of the inmate's term of imprisonment or six months at the end of the sentence, whichever is shorter. 18 U.S.C. § 3624(c)(2); (Gustin Decl. ¶ 5.)

         An inmate's request for RRC or home confinement placement is evaluated using the following criteria: (1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence concerning the purposes for which the sentence to imprisonment was determined to be warranted or recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of Title 28. 18 U.S.C. § 3621(b); 18 U.S.C. § 3624(c)(6); (Gustin Decl. ¶ 6). Inmates are evaluated for prerelease RRC placement and/or home confinement 17-19 months before their projected release dates. (Gustin Decl. ¶ 8.) After an inmate's individualized assessment for prerelease placement under the § 3621(b) factors has been conducted, the institution's recommendation is forwarded to the Residential Reentry Manager's (“RRM”) office overseeing the proposed RRC. (Id. ¶ 10.) RRM staff will finalize the recommendation after considering § 3621(b)(1), i.e., the resources of the facility contemplated. (Id.)

         Congress also mandates, subject to available funding, that the BOP “shall provide residential substance abuse treatment . . . for all eligible prisoners.” 18 U.S.C. § 3621(e)(1)(C). The incentive for prisoners to enroll in the RDAP is a possible reduction in sentence of up to one year. 18 U.S.C. § 3621(e)(2)(B); (Gustin Decl. ¶ 9). To successfully complete RDAP, inmates must complete a minimum of 120 days in a Transitional Drug Abuse Treatment (“TDAT”) program while in community confinement, such as an RRC or home confinement. 28 C.F.R. § 550.53(a)(3); (Gustin Decl. ¶ 9, Ex. B at 1-2). If inmates cannot fulfill the TDAT portion of RDAP before their provisional § 3621 release date, the provisional release date can be adjusted “by the least amount of time necessary to allow inmates to fulfill their treatment obligations.” 28 C.F.R. § 550.55(c)(3); (Gustin Decl. ¶ 9).

         BOP Unit Team Staff reviewed Petitioner under the § 3621(b) factors for a prerelease RRC placement on November 16, 2017. (Gustin Decl. ¶ 23, Ex. C.) Unit Team Staff recommended that Petitioner be placed into a pre-release RRC on May 31, 2018, after completion of the RDAP. (Id.) Unit Team Staff noted that Petitioner would be homeless upon his release, but also noted that Petitioner had his GED, was participating in RDAP, paid his special assessment, and took numerous education courses. (Id.) They also noted Petitioner maintained his family ties through telephone, email, and letters. (Id.) At the time this recommendation was made, Petitioner's projected release date was February 24, 2019, via a § 3621(e) early release. (Gustin Decl. ¶ 24, Ex. C at 1.)

         FCI Sandstone's recommendation was referred to the St. Louis RRM's Office to be finalized after consideration of the § 3621(b)(1) factor. (Id. ¶ 24.) The RRM Staff determined the most appropriate RRC for Petitioner would be ALPHA House of Springfield, Missouri. (Id.) That facility, however, had been operating over contract capacity, and the RRM Staff was managing bed space allocation by adjusting inmates' pre-release RRC placement dates. (Id.) Because resources were not available in the community for a longer placement, the RRM Staff determined that Petitioner's prerelease RRC placement should be postponed until October 26, 2018 (reducing the original recommendation of 270 days to a pre-release RRC placement of 120 days). (Id.) This new placement date still allowed Petitioner time to complete the TDAT portion of RDAP, and attend to other release needs, prior to his scheduled February 24, 2019 release date. (Id.)


         Petitioner argues that the BOP abused its discretion by not following the factors enumerated in 18 U.S.C. § 3621(b) when deciding on his RRC placement. (Habeas Pet. 6-7; Doc. No. 9, Pet'r's Resp. to Mem. in Opp'n (“Pet'r's Resp.”) 4.) Petitioner also argues that his RRC placement was not considered on an individual basis, and the amount of time for placement is not “of sufficient duration to provide the greatest likelihood of successful reintegration into the community.” 28 C.F.R. § 570.22; (Habeas Pet. 7; Pet'r's Resp. 5). Respondent argues that the petition should be dismissed for lack of subject-matter jurisdiction because BOP decisions on RRC and home placement are not subject to review under the Administrative Procedures Act (“APA”). (Doc. No. 6, Resp't's Resp. to Petition (“Resp't's Resp.”) 9-11.) Alternatively, Respondent argues that the petition should be denied on the merits because the BOP properly complied with its duty to review Petitioner for pre-release placement, and Petitioner has no constitutional right to RRC or home confinement placement. (Id. at 12-15.)

         A. Petitioner's Petition Should be Dismissed for Lack of ...

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