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Melot v. Bergami

United States District Court, W.D. Texas, El Paso Division

April 23, 2019

BILLY R. MELOT, Reg. No. 51537-051, Petitioner,
v.
THOMAS E. BERGAMI, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          PHILIP R. MARTINEZ, UNITED STATES DISTRICT JUDGE

         On this day, the Court considered Petitioner Billy R. Melot's [hereinafter "Petitioner"] pro se "Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241" (ECF No. 1-2) [hereinafter "Petition"], received on April 8, 2019, in the above-captioned cause. Therein, Petitioner asked the Court to intervene on his behalf and order Respondent Warden Thomas E. Bergami [hereinafter "Respondent"] to grant him an early release from prison to home confinement pursuant to the Elderly Offender Home Detention Program (EOHDP), 34 U.S.C. § 60541(g). Pet. 8, Apr. 8, 2019, ECF No. 1-2. After due consideration, the Court is of the opinion that the Petition should be denied, for the reasons that follow.

         I. BACKGROUND

         Petitioner is a prisoner at the La Tuna Federal Correctional Institution in Anthony, Texas. Id. at 1. FCI La Tuna is located within the Western District of Texas. 28 U.S.C. § 124(d)(3). Petitioner is serving a fourteen-year term of imprisonment for corruptly endeavoring to impede the administration of the Internal Revenue Code; willfully attempting to evade or defeat taxes; willfully failing to file tax returns; and making false statements to the U.S. Department of Agriculture. Am. J. Crim. Case, Aug. 19, 2016, ECF No. 310, United States v. Melot, 2:09-CR-2258-l-MCA (D.N.M.); United States v. Melot, 732 F.3d 1234 (10th Cir. 2013). His projected release date is August 30, 2022. See https://www.bop.gov/inmateloc/ (search for Reg. No. 51537-051) (last visited Apr. 22, 2019).

         In his Petition, Petitioner maintains that he meets "all criteria" for early release to home confinement under the EOHDP. Pet. 7. Specifically, he explains that he "will have served two-thirds of [his] nominal sentence on . . . August 20, 2019." Pet'r's Pet. for Review and Decl. J. 1, Apr. 8, 2019, ECF No. 1-3. Additionally, he claims that he is a 67-year old, non-violent offender who "will move to home confinement in Hobbs, New Mexico, where [he] will be closely supervised and cared for by [his] wife, Katie Melot." Id. at 3.

         Petitioner states that he applied for early release to home confinement pursuant to the EOHDP on or about January 31, 2019. Id. at 2. However, Respondent denied Petitioner's request on March 25, 2019, because Petitioner received a disciplinary action for an attempted escape:

He cited my internal BOP disciplinary action for events that occurred in July 2015. At that time, I was cited for a violation of BOP disciplinary codes for having climbed an internal fence and being out of bounds when an officer ordered me to cease movement. In the disciplinary proceedings, my actions were characterized as an "attempted escape" and I was sanctioned under the BOP disciplinary rules and regulations.

Id. Petitioner concedes that he "was sanctioned under the BOP disciplinary rules and regulations" with the loss of 42 days of good conduct credit. Id. He argues that Respondent violated his due process and equal protection rights when Respondent denied the request for early release pursuant to the EOHDP.

         II. APPLICABLE LAW

         A. 28 U.S.C. § 2241

         "A section 2241 petition for habeas corpus on behalf of a sentenced prisoner attacks the manner in which his sentence is carried out or the prison authorities' determination of its duration." Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (citations omitted). To prevail, a § 2241 petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c) (2012). A § 2241 petitioner may make this attack only in the district court with jurisdiction over his custodian. United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992).

         During its initial screening of a habeas corpus petition, a reviewing court accepts a petitioner's allegations as true. 28 U.S.C. § 2243; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Additionally, a reviewing court evaluates a petition presented by a pro se petitioner under more a lenient standard than it would apply to a petition submitted by counsel. Erickson v. Pardus, 551 U.S. 89, 94 (2007). A court must "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)).

         B. 34 U.S.C. § 60541(g)

         Pursuant to the EOHDP, the Attorney General "shall conduct a pilot program to determine the effectiveness of removing eligible elderly offenders and eligible terminally ill offenders from Bureau of Prisons facilities and placing such offenders on home detention until the expiration of the prison term to which the offender was sentenced." 34 U.S.C. § 60541(g)(1)(A) (emphasis added). In addition, "the Attorney General may release some or all eligible elderly offenders and eligible terminally ill offenders from Bureau of Prisons facilities to home detention, upon written request from either the Bureau of Prisons or an eligible elderly offender or eligible terminally ill offender.". Id. ยง 60541(g)(1)(B) (emphasis added). In order to qualify for the pilot EOHDP, the elderly offender must (1) be "not less than 60 years of age"; (2) not have a conviction for a crime of violence or sex offense; (3) have "served 2/3 of the term of imprisonment to which the offender was sentenced"; (4) "not escaped, or attempted to escape, from a Bureau of Prisons institution"; (5) save the Bureau of Prisons money through his home ...


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