United States District Court, D. Minnesota
James G. Dudgeon, Petitioner,
Warden M. Rios, Respondent.
G. Dudgeon, Rock Valley Community Programs, Inc., pro se.
Voss, Ann M. Bildtsen, Andrew Tweeten, and Erin M. Secord,
United States Attorney's Office, for Respondent.
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner James G.
Dudgeon's Reply to the Government's Supplemental
Response [Doc. No. 19], which the Court construes as a motion
for reconsideration of the Court's August 19, 2019 Order
(“the August 19 Order”) [Doc. No. 17]. In the
August 19 Order, the Court denied Dudgeon's Petition for
a Writ of Habeas Corpus under 28 U.S.C. § 2241 [Doc. No.
1] and Motion for Immediate Transfer to Home Confinement
[Doc. No. 2]. The Government opposes Dudgeon's Motion for
Reconsideration. (Gov't's Opp'n to Reconsider
[Doc. No. 23].)
September 20, 2019, the Court deferred ruling on
Dudgeon's reconsideration motion and directed the
Government to supplement its response. (Sept. 20, 2019 Order
[Doc. No. 27] at 5-6.) The Government has provided the
requested information, (Gov't's Supp'l Mem. [Doc.
No. 33]), and Dudgeon has likewise filed a supplemental
response. (Pet'r's Supp'l Response [Doc. No.
37].) For the reasons set forth below, Dudgeon's Motion
for Reconsideration is denied.
previously noted, Petitioner is 61 years old and is serving a
two-year term of imprisonment for aggravated identity theft.
(Boldt Decl. [Doc. No. 15] ¶ 4; Second Boldt Decl. [Doc.
No. 24] ¶ 4; Pet. ¶ 13.) Until recently, Dudgeon
was imprisoned at the Federal Prison Camp in Duluth,
Minnesota. (Boldt Decl. ¶ 4.) In his habeas petition,
Dudgeon sought immediate placement in the elderly home
detention pilot program (“Elderly Offender
Program”) of the Bureau of Prisons (“BOP”).
(Pet. at 6-7; Pet'r's Mot. for Transfer at 4.)
August 19 Order, the Court found that to the extent Dudgeon
sought a recalculation of his good time credit, it was moot,
as the BOP had recalculated his sentence to reflect the
change in good time credit under the First Step Act. (Aug. 19
Order at 2.) The Court also noted that discretion about
placement in the Elderly Offender Program lies with the
Attorney General and the BOP. (Id. at 4) (citing 34
U.S.C. § 60541(g)(1)(B); (g)(5)(A)(iv), (vi), (vii)).
addition, the Court stated that on August 14, 2019, staff at
FPC-Duluth reviewed Dudgeon's time-served eligibility for
the Elderly Offender Program, finding that while he failed to
meet the eligibility requirements at that time, he would meet
them on September 14, 2019. (Boldt Decl. ¶ 8.) BOP staff
noted that “[a]t that time a home confinement referral
will be processed in accordance with the Operational
Memorandum, Home Confinement under the First
Step Act. Additionally, Dudgeon does not have a
residence for release.” (Id.) Based on this
information, the Court denied Dudgeon's Petition without
prejudice, as the BOP had determined that Dudgeon was
ineligible for immediate placement in the Elderly Offender
Program, but would be eligible for referral in the near
future. (Aug. 19 Order at 4-5.)
seeking reconsideration, Dudgeon asserts that the BOP
misstates facts regarding whether he has a residence for
release. (Pet'r's Mot. for Reconsider. at 4-5; 6-10.)
He states that he proposed living with his fiancé,
Sharon Burch, in the Northern District of Illinois, if the
BOP placed him in the Elderly Offender Program. (Id.
BOP's determination that Dudgeon lacks a residence is
based upon an April 2019 review conducted by a U.S. probation
officer at the request of the BOP. (Second Winger Decl. [Doc.
No. 25], Ex. C (Apr. 3, 2019 Letter).) Under the First Step
Act, U.S. probation officers are authorized to assist the
Attorney General in “evaluating eligible elderly
offenders.” 34 U.S.C. § 60541. After meeting with
Ms. Burch at her residence, the reviewing probation officer
denied Dudgeon's proposed relocation plan “based on
the fundamental factor that Mr. Dudgeon does not have
significant familial nor employment ties in the Northern
District of Illinois.” (Second Winger Decl., Ex. C
(Apr. 3, 2019 Letter).)
Motion for Reconsideration, Dudgeon contends that he has
administratively challenged the BOP's determination since
May 2019. (Pet'r's Mot. for Reconsider. at 4.) In a
letter that he sent to the U.S. Probation Office in Rockford,
Illinois, Dudgeon addresses his familial ties. (Ex. to
Pet'r's Mot. for Reconsider. at 8.) Dudgeon notes
that apart from his fiancé, his only other family
members include a brother in Phoenix, Arizona, and a son in
Tinley Park, Illinois. (Id.) He states that he was
advised that Phoenix and the Chicago area are not acceptable
locations for home confinement or supervision. (Id.)
Further, Dudgeon asserts that he lived with Ms. Burch in
Rockford, Illinois in July 2017, and that Ms. Burch has been
employed full-time since October 2017 at a local law firm.
(Id.) Dudgeon is confident in his ability to find
work in the area, citing over 30 years of successful business
experience. (Id.) In Dane County, Wisconsin, where
he believed he would complete the remainder of his sentence
in a residential reentry center, he has no family members,
nor any job prospects, as he has not lived there since
mid-2014. (Id. at 9.)
letter that his fiancé submitted to the U.S. Probation
Office in Rockford, Ms. Burch states that she has been in a
committed relationship with Dudgeon since early 2016 and
plans to marry him. (Ex. to Pet'r's Mot. for
Reconsider. at 5.) She has a stable home, reliable
transportation, and a full-time job, all of which, she
asserts, are more conducive to Dudgeon finding employment in
their community than elsewhere. (Id.) She further
notes that she has no criminal background and there is no
domestic violence or substance abuse in her relationship with
Court deferred ruling on Dudgeon's Motion for
Reconsideration and directed the Government to update the
Court on the status of Dudgeon's administrative remedies.
(Sept. 20, 2019 Order at 5-6.) Also, the Court asked for
additional detail regarding the Government's
determination that Dudgeon lacks “significant ...