United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
matter is before the court on the Recommended Disposition
filed by United States Magistrate Judge Hanly A. Ingram. [R.
84.] The Defendant, David Giles, has filed a pro se
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. [R. 81.] Consistent with local
practice, Judge Ingram reviewed the motion and ultimately
recommends that the Court deny the Defendant's §
2255 motion in its entirety.
Federal Rule of Civil Procedure 72(b)(2), a petitioner has
fourteen days after service to register any objections to the
Recommended Disposition or else waive his rights to appeal.
In order to receive de novo review by this Court,
any objection to the recommended disposition must be
specific. Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986). A specific objection “explain[s] and
cite[s] specific portions of the report which [counsel]
deem[s] problematic.” Robert v. Tesson, 507
F.3d 981, 994 (6th Cir. 2007). A general objection that fails
to identify specific factual or legal issues from the
recommendation, however, is not permitted, since it
duplicates the Magistrate's efforts and wastes judicial
economy. Howard v. Sec'y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Giles filed timely objections to the Recommended Disposition.
[R. 87.] The Court acknowledges its duty to review
Giles's filings under a more lenient standard than the
one applied to attorneys because Giles is proceeding pro se.
See Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir.
1985). Under this more lenient construction, the objections
are sufficiently definite to trigger the Court's
obligation to conduct a de novo review. See
28 U.S.C. § 636(b)(1)(c). The Court has satisfied that
duty, reviewing the entire record, including the pleadings,
the parties' arguments, relevant case law and statutory
authority, as well as applicable procedural rules. For the
following reasons, Giles's objections will be
Ingram's Recommended Disposition accurately sets forth
the factual and procedural background of the case. The Court
mentions only key facts to frame its discussion and analysis
and incorporates Judge Ingram's discussion of the record
into this Order.
March 2014, Giles was indicted on a violation of 33 U.S.C.
§ 1319(c)(2)(A), the Knowing Discharge of Raw Sewage
into Water of the United States. [R. 1.] This Court held a
three-day jury trial where the jury convicted Giles of the
charges. [R. 61-63.] Giles moved for acquittal or, in the
alternative, a new trial on the basis that the Government
presented insufficient evidence at trial to sustain the
conviction; this Court denied both motions. [R. 67.] On
October 14, 2014, this Court entered a judgment upon a guilty
verdict, sentencing Giles to thirty (30) months of
imprisonment followed by one year of supervised release. [R.
71.] Giles appealed this Court's denial of his motion for
acquittal and denial of his motion for a new trial to the
United States Court of Appeals for the Sixth Circuit; the
Court of Appeals affirmed this Court's opinion on August
30, 2017. [R. 72, 83.]
sentencing, this Court recommended to the Bureau of Prisons
(“BOP”), “That the defendant be designated
to and serve his sentence at the Bureau of Prisons facility
that is closes to his home of record[;] That the defendant
participate in the 500-Hour RDAP [Residential Drug Abuse
Program] Program.” [R. 71 at 2.] Giles is incarcerated
at Federal Correctional Institution-Terre Haute
(“FCI-Terre Haute”), and Giles claims FCI-Terre
Haute allows prisoners to participate in RDAP only when the
prisoner was convicted of a drug-related offense. [R. 81-1 at
3.] Because Giles is not incarcerated as a result of a
drug-related offense, he has not been permitted to
participate in RDAP at FCI-Terre Haute.
Giles claims his sentence has not been executed properly
because of his inability to participate in the BOP's
RDAP, and therefore, it is impossible to carry out the
Court's intended sentence. [R. 81-1 at 1.] Giles moves
for a reduced sentence. Judge Ingram thoughtfully considered
each of these claims and found this Court's
recommendation of participation in RDAP was a non-binding
recommendation; thus, Giles's inability to participate in
RDAP does not invalidate his sentence. This Court is in
agreement with Judge Ingram's conclusions.
Giles's sole objection is to Judge Ingram's
application of the law. He claims, “Confinement in the
wrong institution falls within the ambit of § 2241
habeas corpus relief, because it concerns the unlawful
imposition of physical confinement.” [R. 87 at 3.] He
cites to Preiser v. Rodriguez, 411 U.S. 475 (1973),
to allege that his confinement in the “wrong
institution, ” one which does not permit non-drug
offenders to attend RDAP, constitutes this “unlawful
imposition of physical confinement.” Id.
However, Preiser concerns the cancellation of
good-conduct-time credits that inmates had already earned,
not confinement in an institution that does not award
comparable credits. 411 U.S. at 477-78. Mr. Giles never
earned any credits, nor did BOP cancel any credits, thus,
Preiser does not apply in this case. Instead, this
Court finds the same result as Judge Ingram determined: this
Court's recommendation that Mr. Giles participate in RDAP
is not binding on the BOP. [R. 84 at 4.]
When a court sentences a defendant, the BOP has
“plenary control” over the “'place of
the prisoner's imprisonment, ' and the treatment
programs (if any) in which they participate.” Tapia
v. United States, 564 U.S. 319, 331 (2011) (citing 18
U.S.C. §§ 3621(b), (e), (f); 3624(f); 28 C.F.R.
pts. 544, 550 (2010)). Additionally, “[a] sentencing
court can recommend that the BOP place an offender
in a particular facility or program. But decisionmaking
authority rests with the BOP.” Tapia, 564 U.S.
at 331 (citing 18 U.S.C. § 3582(a)); see also Laws
v. Barron, 348 F.Supp.2d 795 (E.D. Ky. 2004) (upholding
BOP's determination of RDAP eligibility).
Id. Therefore, when this Court recommended
participation in RDAP, it was merely a recommendation, not an
order. Nor does an inmate have a constitutional right to
participate in RDAP. Mann v. Snyder-Norris, No.
16-cv-88-HRW 2017 WL 3220442, at *2 (E.D. Ky. July 28, 2017)
(citing Standifer v. Ledezma, 653 F.3d 1276, 1279
(10th Cir. 2011); see also Kuban v. Snyder-Norris,
No. 16-cv-52-HRW 2017 WL 2609037, at *2 (E.D. Ky. June ...