United States District Court, N.D. West Virginia
MARQUEZ T. HOLMES, Petitioner,
DEWAYNE HENDRIX, Warden, Respondent.
REPORT AND RECOMMENDATION
E. SEIBERT UNITED STATES MAGISTRATE JUDGE.
20, 2017, Petitioner filed this habeas action pursuant to 28
U.S.C. § 2241. On August 24, 2017, Petitioner satisfied
the $5.00 filing fee. On August 25, 2017, Respondent was
directed to show cause why the petition should not be
granted. On September 13, 2017, Respondent filed a Motion to
Dismiss and Response. Because a declaration and attachments
were included with the Motion to Dismiss, the undersigned
construed the same as a Motion for Summary Judgment and
issued a Roseboro Notice on September 14, 2017. On December
28, 2017, an Amended Roseboro Notice was issued to clarify
why the Motion to Dismiss was construed as a Motion for
Summary Judgment. To date, Petitioner has not responded.
Factual and Procedural Background
a federal inmate incarcerated at the Federal Correctional
Institution in Morgantown, West Virginia (“FCI
Morgantown”), is serving a 60-month sentence following
his conviction in the United States District Court for the
Northern District of Georgia for Attempt to Distribute More
Than 500 Grams of Cocaine, in violation of 21 U.S.C.
§§ 846, 841(a)(1), (b)(1)(B), and Extortion under
Color of Right, in violation of 18 U.S.C. § 1951(a). ECF
No. 13-1 at 10-11. According to the Bureau of Prisons
website, Petitioner's current projected release date is
February 1, 2019. See bop.gov.
of his participation in the Residential Drug Abuse Program
(“RDAP”), Petitioner requested review of his
eligibility for early release pursuant to 18 U.S.C. §
3621(e). On December 31, 2014, the Designation and Sentence
Computation Center (“DSCC”) found him ineligible
for early release because his offenses of conviction were
accompanied by a court-adopted Specific Offense
Characteristic (“SOC”) enhancement for possession
of a dangerous weapon.
Contentions of the Parties
alleges that he was denied consideration for early release
under 18 U.S.C. § 3621 due to an unlawful application of
28 C.F.R. § 550.55. In support of this allegation,
Petitioner notes that he successfully completed the RDAP on
March 3, 2017, but was denied consideration for early release
because his sentence included an enhancement under the
sentencing guidelines for possession of a gun even though the
gun possession was not an element of any of his charges.
Petitioner also seeks a declaration from this Court that 28
C.F.R. 550.55 is invalid as applied to him and argues that
the entirety of that regulation “should be set aside
and stricken un[d]er 5 USC 705 as arbitrary, [capricious],
and abuse of discretion and otherwise unlawful.” ECF
No. 1 at 5.
The Respondent's Motion
motion to dismiss, Respondent asserts that the petition
should be dismissed for the following reasons:
U.S.C. § 3625 precludes judicial review under the
Administrative Procedures Act (“APA”) of the
BOP's discretionary and individualized early release
Webster exception to judicial review bar is
inapplicable in this case, because the petition is void of
any cognizable constitutional claim that would warrant this
Court's review; and
Neal exception to the judicial review bar is
inapplicable in this case because the BOP's
interpretation of 18 U.S.C. § ...