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Owen v. Sepanek

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

November 19, 2014



HENRY R. WILLHOLT, Jr., District Judge.

Harry Carlos Owen is a prisoner confined by the Bureau of Prisons ("BOP") in the Federal Correctional Institution ("FCI")-Ashland, located in Ashland, Kentucky. Proceeding without counsel, Owen has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his security classification at FCI-Ashland. [D.E. No. 1][1]

The Court concludes an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.App'x 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 relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Owen'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. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts Owen'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). Having reviewed the petition, the Court must deny relief because Owen may not assert his claims in a habeas corpus proceeding brought under 28 U.S.C. § 2241.


In September 2000, Owen was charged in a West Virginia federal court with conspiring with his co-Defendants and Ronald Cleveland Owen, an uncharged coconspirator, to knowingly and intentionally distribute one thousand kilograms or more of a mixture or substance containing a detectable amount of marijuana, oxycodone and hydromorphone, in violation of 21 U.S.C. §§ 841(a)(1), 846. United States v. Harry Carlos Owen, No. 5:00-CR-185-1 (S. D. W.Va. 2000) [R. 1, therein] In count sixteen of that indictment, Owen was also charged with violating 21 U.S.C. § 843(b) by knowingly and intentionally using the public telephone system in committing, causing, and facilitating the commission of a felony in violation of 21 U.S.C. § 846 [ Id. ]

On March 15, 2001, the jury found Owen guilty as charged in counts one and sixteen, and completed a Special Verdict/Interrogatories finding him guilty of, among other things, conspiring to distribute 1, 000 kilograms or more of marijuana. [ Id., R. 402, 404, therein] On July 12, 2001, the district court sentenced Owen to a 324-month prison term on the § 846 drug offense, and to a 48-month prison sentence on the § 843 telephone offense, but ordered the prison terms to run concurrently. [ Id., R. 568, therein]

In June 2002, Owen filed a motion to vacate his sentence under 28 U.S.C. § 2255, challenging both his conviction and his sentence on numerous grounds. [ Id., R. 750, 751, therein] On December 18, 2003, the district court denied Owens' § 2255 motion, finding that none of his arguments had merit. [ Id., R. 843, therein]

In July 2004, the district court granted Owen's motion to supplement his § 2255 motion to assert a claim based on the Supreme Court's then recently rendered decision in Blakely v. Washington, 542 U.S. 296 (2004). [ Id., R. 870, therein] On April 25, 2005, the Magistrate Judge issued a Report and Recommendation ("R & R"), concluding that Owen's supplemental § 2255 motion should be denied because Blakely did not apply retroactively to cases on collateral review. [ Id., R. 887, therein] Owen filed objections, but on September 16, 2005, the district court adopted the R & R, finding that it was well-reasoned and supported by the case law. [ Id., R. 906, 907, therein] Owen appealed, but the Fourth Circuit Court of Appeals denied him a certificate of appealability. [ Id., R. 955, 956, therein; see United States v. Harry Carlos Owen, No. 05-7720 (4th Cir. Jun. 1, 2006)]

The BOP's website states that Owen, BOP Register NO. 06330-088, has a projected release date of March 12, 2024. See (last visited on November 4, 2014).


Owen states that prior to March 2014, he had a "moderate" security classification which ensured him placement in a prison camp at some point in 2014, which could have been ten (10) years prior to the date of his projected release from the BOP's custody in March 2024. [D. E. No. 1, pp. 5-6] Owen asserts that under 18 U.S.C. §§§ 3621(b), 4042(a)(2) and 4081, he had a vested liberty interest in both his lower security classification and his transfer to a prison camp in March 2014.

Owen states that in September 2006, the BOP issued its Program Statement 5100.08, entitled Inmate Security Designation and Custody Classification, in which it amended the severity classification tables applicable to offenders who were convicted after September 2006 and created a variable, known as a Public Safety Factor ("PSF"). Owen states that the PSF, as applied to him, resulted in him having a higher security classification and prevented him from being transferred to a lower security BOP facility or to a prison camp.

Owen alleges that in March 2014, at the very point in time when he became eligible to for a transfer to a federal prison camp, FCI-Ashland Unit Manager Brian Sparks arbitrarily and capriciously modified his offense severity classification from "moderate" to "greatest, " thus preventing his transfer to the prison camp. Owen alleges that Sparks exceeded his authority and abused his power by increasing his security classification; that such a decision could be made only by the BOP's Designation and Sentence Computation Center; that he (Owen) was not provided with advance notice of Sparks' decision to increase his security classification; and that his higher security classification was the result of "... willful and deliberate act of discrimination by FBOP staff in retaliation against the petitioner for his political beliefs." [D.E. No. 1, p. 3]

Owen contends that the BOP's decision to assign him a negative PSF under Program Statement 5100.08 amounts to an impermissible retroactive or ex post facto application of the policy, in violation of the U.S. Constitution, Art. I, § 9, cl. 3, and a violation his right to due process of the law guaranteed under the Fifth Amendment of the U.S. Constitution. Owen claims that the PSF decision was impermissibly based on the FCI-Ashland Unit Team's "personal dislikes, emotional bias, and prejudices" [D.E. No. 1, p. 2], and that the BOP ...

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