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Holmes v. Hendrix

United States District Court, N.D. West Virginia

March 14, 2018

MARQUEZ T. HOLMES, Petitioner,
v.
DEWAYNE HENDRIX, Warden, Respondent.

          Bailey Judge

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT UNITED STATES MAGISTRATE JUDGE.

         On June 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.

         I. Factual and Procedural Background

         Petitioner, 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.

         Because 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.

         II. Contentions of the Parties

         A. The Petition

         Petitioner 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.

         B. The Respondent's Motion

         In his motion to dismiss, Respondent asserts that the petition should be dismissed for the following reasons:

         1. 18 U.S.C. § 3625 precludes judicial review under the Administrative Procedures Act (“APA”) of the BOP's discretionary and individualized early release determinations;

         2. The Webster[1] 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

         3. The Neal[2] exception to the judicial review bar is inapplicable in this case because the BOP's interpretation of 18 U.S.C. ยง ...


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