United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE
Jackie McKubbin, a federal prisoner, filed a pro se
petition for a writ of habeas corpus under 28 U.S.C. §
2241. The District Court referred the resulting civil action
to the United States magistrate judge, pursuant to 28 U.S.C.
§ 636(b) and a standing order of reference. For the
following reasons, the petition should be DENIED.
was convicted in the United States District Court for the
Western District of North Carolina of (1) conspiracy to
possess with intent to distribute a quantity of cocaine and
cocaine base within 1, 000 feet of a school or playground, in
violation of 21 U.S.C. § 846, and (2) transfer of a
firearm used to commit a drug trafficking crime, in violation
of 18 U.S.C. § 924(h) and 18 U.S.C. § 921(a)(3).
United States v. McKubbin, No. 95-cr-5-03-MU (W.D.
N.C. Sept. 8, 1995). He was sentenced to life in prison.
Petitioner's sentence was enhanced for the possession of
a firearm during commission of the offense. On August 27,
2009, the sentencing court granted Petitioner's motion
for sentence reduction and reduced Petitioner's sentence
from life to 360 months imprisonment. Petitioner is currently
incarcerated at the Federal Correctional Institution in
does not challenge his convictions or sentence. Instead, he
argues the Bureau of Prisons' decision to deny him early
release eligibility through the Residential Drug Abuse
Program (RDAP) was an abuse of discretion.
18 U.S.C. § 3621(e)(2)(B), if an inmate successfully
completes the RDAP, the BOP may reduce the period an inmate
convicted of a nonviolent offense remains in custody.
See 18 U.S.C. § 3621 (e)(2)(B); 28 C.F.R.
§ 550.55. Certain inmates, however, are not eligible for
early release under the RDAP. See 28 C.F.R. §
550.55. As relevant here, the BOP found Petitioner was
ineligible for early release under the RDAP because: (1) his
conviction involved the carrying, possession, or use of a
firearm or other dangerous weapon or explosives, and by its
nature or conduct presented a serious potential risk of
physical force against the person or property of another; and
(2) his offense constituted an attempt, conspiracy, or
solicitation to commit a precluding offense. (ECF No. 9 at
8-9, citing 28 C.F.R. §§ 550.55(b)(5)(ii-iii) and
argues the BOP abused its discretion in excluding him from
the RDAP program because, although his sentence was enhanced
for possession of a firearm, his offense was a nonviolent
Administrative Procedures Act (“APA”) provides
that a person suffering a legal wrong because of an
agency's action is entitled to judicial review, unless
otherwise precluded by statute. See 5 U.S.C.
§§ 701, 702. The APA, however, does not apply to
the BOP's program eligibility determinations under §
3621(e). See 18 U.S.C § 3625 (stating the APA
does “not apply to the making of any determination,
decision, or order” under the subchapter that includes
§ 3621(e)); see also Knapp v. United States,
No. 4:05-cv-313-Y, 2005 WL 2233587 at *2 (N.D. Tex. Sept. 13,
2005) (stating pursuant to § 3625, BOP's decision to
exclude a prisoner from RDAP is not reviewable under the
APA.) Petitioner's claims that the BOP abused its
discretion under the APA should therefore be denied.
to the extent Petitioner argues the BOP exceeded its
authority in categorically denying RDAP eligibility to
prisoners who are convicted of a drug offense with a firearm
enhancement, the claim is without merit. The Supreme Court
and the Fifth Circuit have found the BOP's regulations
denying RDAP eligibility to this class of prisoners is a
reasonable exercise of its statutory authority. See Lopez
v. Davis, 531 U.S. 230, 244 (2001) (stating the BOP may
categorically exclude prisoners from the RDAP program, and
that “an inmate's prior involvement with firearms,
in connection with the commission of a felony, suggests his
readiness to resort to life-endangering violence and
therefore appropriately determines the early release
decision.”); Handley v. Chapman, 587 F.3d 273,
282 (5th Cir. 2009) (stating BOP regulations excluding
prisoners from RDAP due to a gun enhancement are within the
BOP's authority and are not arbitrary or capricious).
to the extent Petitioner argues that his exclusion from RDAP
violated his constitutional rights, his claim is without
merit. The Fifth Circuit has determined there is no
constitutionally-protected liberty interest in receiving a
sentence reduction under the RDAP. See Richardson v.
Joslin, 501 F.3d 415, 420 (5th Cir. 2007). The Court
found that “[t]he grant of discretion to the BOP in
§ 3621(e)(2)(B) indicates that no entitlement, and hence
no liberty interest, was created.” Id.
reasons stated, the Court recommends that the petition filed
under 28 U.S.C. § 2241 be DENIED.
FOR SERVICE AND NOTICE OF RIGHT ...