United States District Court, W.D. Texas, El Paso Division
WILLIAM RICHARD BELL, Reg. No. 42762-298, Petitioner,
THOMAS E. BERGAMI, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
R. MARTINEZ UNITED STAGES DISTRICT JUDGE
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. 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.
BACKGROUND AND PROCEDURAL HISTORY
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.
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.
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").
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.
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.
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).
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)).
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 ...