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Leventhal v. Rios

United States District Court, D. Minnesota

May 16, 2018

Howard Leventhal, Petitioner,
Warden Rios, Respondent.

          Howard Leventhal, Reg. No. 46376-424, Federal Prison Camp, pro se petitioner

          Ana H. Voss, Ann M. Bildtsen, Assistant United States Attorney's Office, counsel for respondent.



         Howard 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.


         Mr. 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.

         A. RDAP Participation and RRC Placement

         Mr. 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. § 3621(e)(2)(B).

         Unfortunately, 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.

         Mr. 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.

         Regardless 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.[1] 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.)

         B. Procedural History

         Mr. 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, [2] 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”).

         This 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.)

         Mr. 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.)

         Also at 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 ...

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