United States District Court, D. Minnesota
Leventhal, Reg. No. 46376-424, Federal Prison Camp, pro se
Voss, Ann M. Bildtsen, Assistant United States Attorney's
Office, counsel for respondent.
REPORT AND RECOMMENDATION
KATHERINE MENENDEZ UNITED STATES MAGISTRATE JUDGE
Leventhal has filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241. Also before the Court are
several related motions brought by Mr. Leventhal. For the
following reasons, the Court recommends that the petition be
dismissed, and the motions be denied.
Leventhal is currently incarcerated at the Federal Prison
Camp in Duluth, Minnesota. He was sentenced in the United
States District Court for the Eastern District of New York to
60 months of imprisonment after pleading guilty to Wire Fraud
and Aggravated Identity Theft.
RDAP Participation and RRC Placement
Leventhal began the Bureau of Prisons'
(“BOP”) Residential Drug Abuse Program (RDAP) on
May 12, 2017 at a prison in Illinois. When he began the
program, Mr. Leventhal was required to sign an Agreement
to Participate, which explained that participants could
be expelled from RDAP for failure to comply with the
program's expectations and rules. (See ECF No.
4, Ex. 31.) Had he successfully completed RDAP, Mr. Leventhal
would have been eligible for a reduction in his term of
imprisonment of up to one year. See 18 U.S.C. §
Mr. Leventhal struggled in RDAP from the beginning, and on
June 29, 2017, RDAP staff issued a Formal Warning to him for
failing to demonstrate sufficient growth within the program.
(ECF No. 4, Ex. 29 at 3.) Mr. Leventhal's difficulties
continued, and RDAP staff eventually decided that he would
benefit from restarting the program. Mr. Leventhal filed an
administrative remedy request challenging the BOP's
decision to require him to restart RDAP. (Declaration of
Shannon Boldt, ECF No. 35, ¶ 19.) This request was
denied, and Mr. Leventhal timely appealed this denial to the
Regional Office. (Id. ¶ 20.) His appeal was
also denied, and Mr. Leventhal appealed that decision to the
Central Office. (Id. ¶ 21.) This final appeal
was also denied. (Id.) With this final denial, Mr.
Leventhal exhausted his administrative remedies with respect
to his restart of RDAP.
Leventhal was moved to FPC Duluth and restarted the first
phase of RDAP on September 20, 2017, after which he continued
to make unsatisfactory progress. (ECF No. 4, Ex. 36 at 1.) On
January 24, 2018, after he filed this habeas petition, Mr.
Leventhal was expelled from the RDAP program and informed
that he could reapply for RDAP after 90 days. (ECF No. 21.)
Upon his expulsion, Mr. Leventhal became ineligible for early
release under § 3621(e), unless he reapplies and
successfully completes the program at a later date. Mr.
Leventhal did not file any administrative challenges to his
expulsion from RDAP.
of whether he completes RDAP, Mr. Leventhal is eligible for
placement in a Residential Reentry Center (“RRC”
or “halfway house”) for up to 12 months before
the end of his sentences, or in home confinement for the
shorter of 10 percent of his term of imprisonment or 6 months
at the end of his sentence. 18 U.S.C. § 3624. The BOP
determines the appropriate length of stay in an RRC or home
confinement based on an individual evaluation of five
statutory factors laid out in 18 U.S.C. §
3621. Mr. Leventhal underwent a preliminary
review for his RRC placement in January 2017, and an initial
determination was made that he should receive six months of
pre-release RRC placement. (Decl. of Kyja Warner, ECF No. 34,
¶ 9.) After this review, Mr. Leventhal was expelled from
RDAP and the earlier calculation of his projected release
date changed from January 2019 to January 2020. Due to this
change, no final determination regarding the duration of Mr.
Leventhal's RRC placement has yet been made. Mr.
Leventhal's case will be reviewed again by the BOP in May
2018, at which time a new determination of his RRC placement
will be made. (Id. ¶¶ 10-11.)
Leventhal filed a habeas petition under 28 U.S.C. § 2241
on December 14, 2017. He challenges BOP actions that he
alleges affected his ability to complete the RDAP program;
the length of his preliminary RRC placement determination;
the duration of his sentence; and the conditions of his
confinement, largely related to the BOP's treatment of
Mr. Leventhal's severe chronic illness. He originally
sought an order preventing the BOP from removing him from
RDAP,  immediate release upon his completion of
RDAP to an RRC or, in the alternative, immediate release to
home confinement. He also seeks damages and the certification
of a class action lawsuit against the BOP and the Department
of Justice (“DOJ”).
Court ordered Respondent to file an answer and directed that
Respondent address only claims appropriately sounding in
habeas corpus, and identify claims that should be raised in a
separate civil proceeding. (Order, ECF No. 14.) Respondent
identified three broad categories of claims within Mr.
Leventhal's petition: RDAP and RRC placement claims
cognizable under § 2241; obstruction of justice claims
related to the duration of his sentence cognizable under
§ 2255; and civil rights and related claims to be raised
in a civil proceeding. (Resp., ECF No. 33, 14-18.)
Leventhal's Reply Brief raised additional factual
allegations regarding conditions of confinement. Mr.
Leventhal also moved within the Reply Brief to strike,
dismiss, and/or sanction the government's answer, and for
partial summary judgment. Finally, Mr. Leventhal moved to
voluntarily dismiss the Equal Protection claims of his
Petition, certain conditions of confinement claims, and
“[a]ny other additional portion of the original
Petition that this court deems reasonably necessary to
dismiss in order to issue writ of habeas
corpus….” (Reply, ECF No. 40, 22.)
issue in this case are three unresolved motions: Motion for
Restraining Order (ECF No. 15), Motion for Rule to Show
Cause-Indirect Contempt (ECF No. 20), and Motion to ...