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Galvin v. Sepanek

United States District Court, E.D. Kentucky, Northern Division at Ashland

August 25, 2014

JOSHUA D. GALVIN, Petitioner,
v.
MICHAEL SEPANEK, WARDEN, Respondent.

MEMORANDUM OPINION AND ORDER

HENRY R. WILHOIT, Jr., District Judge.

Joshua D. Galvin is an inmate confined by the Bureau of Prisons ("BOP") in the Federal Correctional Institution ("FCI"), located in Ashland, Kentucky. Proceeding without an attorney, Galvin has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that the BOP has violated his right to due process of law by refusing to consider placing him in a Residential Re-Entry Center ("RRC") for more than 150-180 days. [D. E. No. 1] Galvin has paid the $5.00 filing fee. [ Id. ]

The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relied." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)). The Court evaluates Galvin's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Galvin, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts Galvin's factual allegations as true, and liberally construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

The Court will deny Galvin's § 2241 petition because, as explained below, the BOP has not violated his right to due process of law guaranteed by the Fifth Amendment to the United States Constitution.

BACKGROUND

In January 2007, Galvin pleaded guilty to aiding and abetting an armed bank robbery, in violation of 18 U.S.C. § 2113(a), and to possessing a firearm during a and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(2). United States v. Galvin, No. 1:07-CR-2-MR-1 (W.D. N.C. 2007). On June 13, 2007, the district court sentenced Galvin to a 37-month prison term on the bank robbery conviction, and an 84-month prison term on the firearm conviction, for a total prison term of 121 months. [ Id., D. E. No. 32, therein] The BOP's official reflects that Galvin's projected release date is November 10, 2015. See http://www.bop.gov/inmateloc/(last visited on August 12, 2014).

In his § 2241 petition, Galvin states that he "... has served over 73% of his time and has a projected release date of November 11, 2105, without any "Half Way House." [D. E. No. 1, p. 4, ¶ 10] The BOP administrative remedy responses attached to Galvin's § 2241 petition reveal that the Unit Team at FCI-Ashland evaluated him for RCC placement using the five criteria set forth in 18 U.S.C. § 3621(b), then recommended an RRC placement of 150-180 days prior to his projected release date.[1] Under that recommendation, Galvin will be transferred to an RRC either on or about May 10, 2015 (under a 180-day RRC placement), or on or about June 10, 2015 (under a 150-day RRC placement).

Galvin contends that a 150-180 day RRC placement is inadequate. He seeks an Order requiring the BOP to immediately place him in an RRC, based upon the provisions of 18 U.S.C. § 3621(b), which he contends expressly permits the BOP to place federal inmates in an RRC at any time during their period of confinement. Galvin contends that the BOP has arbitrarily refused to consider him for RRC placement until 150 days (five months) or 180 days (six months) before his sentence expires because the Second Chance Act, 2007, Pub. L. No. 110-199, § 2519(a), 122 Stat. 657, 692-93 (April 9, 2008); 18 U.S.C. § 3624(c), permits no more than a 12-month placement in an RRC. The Second Chance Act provides that the BOP shall "ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community." 18 U.S.C. § 3624(c); see also Miller v. Whitehead, 527 F.3d 752, 756 (8th Cir. 2008).

Galvin maintains that BOP can, and should, immediately place him in an RRC based on authority given to it under § 3621(b); that the BOP is improperly relying on the Second Chance Act in denying his request for immediate RCC placement; and that the BOP's actions are arbitrary and capricious, and thus violate his right to due process of law.

DISCUSSION

Galvin's arguments lack merit for several reasons. First, the Second Chance Act amended 18 U.S.C. § 3624(c)(1) to provide that the Director of the BOP shall "ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community." Second Chance Act § 251, 122 Stat. at 692, "As a result of this statute and the new 12-month maximum placement, the BOP issued guidance directing that inmates must now be reviewed for pre-release RRC placements 17-19 months before their projected release dates.'" Ramirez v. Eichenlaub, No. 06-CV-1493, 2008 WL 4791892, 3 (E.D. Mich. Oct. 30, 2008) (quoting Miller, 527 F.3d at 755).

The law in this circuit is that the Second Chance Act does not automatically mandate, entitle, or guarantee, any prisoner placement in an RRC. See Demis v. Sniezek, 558 F.3d 508, 514 (6th Cir. 2009); Lovett v. Hogsten, No. 09-5605, 2209 WL 5851205, at *2 (6th Cir. Dec. 29, 2009); Harris v. Hickey, No. 10-CV-135, 2010 WL 1959379, at *3 (E.D. Ky. May 17, 2010). The Second Chance Act only requires the BOP to consider placing an inmate in RRC for up to a 12-month period. Demis, 558 F.3d at 514 (emphasis added).

Second, the Second Chance Act mandates that the BOP make RRC placement decisions on an individual basis with reference to the criteria set forth in 18 U.S.C. § 3621(b), which provides:

(b) Place of imprisonment. - The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which ...

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