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Bell v. Bergami

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

April 29, 2019

WILLIAM RICHARD BELL, Reg. No. 42762-298, Petitioner,
v.
THOMAS E. BERGAMI, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          PHILIP R. MARTINEZ UNITED STAGES DISTRICT JUDGE

         On this day, the Court considered Petitioner William Richard Bell's [hereinafter "Petitioner"] pro se "Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241" (ECF No. 1-1) [hereinafter "Petition"] filed on April 9, 2019, in the above-captioned cause. Petitioner is a federal prisoner at the La Tuna Federal Correctional Institution in Anthony, Texas.[1] He alleges that Respondent Thomas E. Bergami, the Warden at La Tuna, wrongfully denied him early release from prison. After due consideration, the Court is of the opinion that the Petition should be denied, for the reasons that follow.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On May 13, 2014, the Scurry County Sheriff obtained a warrant to search Petitioner's property in rural Scurry County, Texas. United States v. Bell, l:14-CR-67-0 (N.D. Tex.), Factual Resume 2, Jan. 20, 2015, ECF No. 99.[2] During the search, law enforcement agents discovered substantial quantities of methamphetamine, drug paraphernalia, and a pistol:

.On May 14, 2014, Bell left the residence and was stopped by law enforcement agents. Bell told the agents that there were five other people in the residence. Bell denied that there were guns and drugs in the residence. At approximately 11:45 a.m., agents executed the search warrant. Agents located approximately 182 grams of methamphetamine (97.8% purity), pipes, drug paraphernalia and a 9 mm Ruger pistol (from a van parked outside the residence).

Id. On January 20, 2015, Petitioner pleaded guilty, pursuant to a plea agreement, to count one of an indictment charging him with conspiracy to distribute and to possess with the intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii), and 846. Id., J. Crim. Case, June 11, 2015, ECF No. 154.

         At Petitioner's sentencing, the Court adopted a two-level specific offense characteristic enhancement because Petitioner possessed a dangerous weapon-the pistol-at the time of the search. Pet. Ex. B (Warden's Resp. to Request for Admin. Remedy), Apr. 9, 2019, ECF No. 1-3; see U.S. Sentencing Guideline Manual § 2D1.1(b)(1) (U.S. Sentencing Comm'n 2014) ("If a dangerous weapon (including a firearm) was possessed, increase by 2 levels."). The Court sentenced Petitioner to 87 months' imprisonment. United States v. Bell, l:14-CR-67-0 (N.D. Tex.), J. Crim. Case 2. In addition, the Court recommended that Petitioner participate in a Residential Drug Abuse Program ("RDAP"). Id.

         While incarcerated, Petitioner sought admission into the RDAP. Petitioner understood that prisoners who successfully completed the RDAP were eligible for early release from prison. 18 U.S.C. § 3621(e). Although Petitioner apparently completed the residential portion of the RDAP, prison officials denied him early release from prison pursuant to a rule promulgated by the Bureau of Prisons ("BOP"). Pet. Ex. A (Request for Admin. Remedy), Apr. 9, 2019, ECF No. 1-3. Specifically, the rule at 28 C.F.R. § 550.55 categorically denied early release to prisoners convicted of drug trafficking offenses who received two-level sentencing enhancements for possessing firearms.

         By this action, Petitioner challenges the BOP's decision denying him early release. He notes-correctly-that his conviction for conspiracy to distribute and to possess with the intent to distribute fifty grams or more of methamphetamine did not have "as an [ELEMENT], the actual, attempted, or threatened use of physical force against the person or property of another, or any other disqualifying offense. Not at all, not any." Mem. in Supp. 13, Apr. 9, 2019, ECF No. 1-2. Petitioner argues that Respondent "seems to rely on an inapplicable section of. 'Program Statement 5162.05, Categorization of Offenses' as support for the denial." Id. at 14. Furthermore, he maintains that Respondent "is denying [him] early release by using relevant conduct of the sentencing guidelines to create an element of a statutory offense, as the basis for disqualification." Pet. 2-3. Accordingly, he asks the Court to "order the [R]espondent to allow [him] to participate in, and fully benefit from the Residential Drug Abuse Program, and if successfully completed, obtain the full benefits from 18 U.S.C. § 3621(e)." Mem. in Supp. 17.

         II. APPLICABLE LAW

         A writ of habeas corpus pursuant to 28 U.S.C. § 2241 provides the proper procedural vehicle in which to raise an attack on "the manner in which a sentence is executed." Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). However, "[h]abeas corpus relief is extraordinary and 'is reserved for transgressions of constitutional rights and for a narrow range of injuries that. . . if condoned, result in a complete miscarriage of justice.'" Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). To prevail, a habeas corpus 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).

         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 a more 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." 28 U.S.C. foil. § 2254 Rule 4 (applicable to § 2241 petitions pursuant to Rule 1(b)).

         III. ANALYSIS

         In 1990, Congress required the BOP to "make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." Crime Control Act of 1990, Pub. L. 101-647, § 2903, 104 Stat. 4789, 4913, codified as amended at 18 U.S.C. § 3621(b). Four years ...


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