United States District Court, E.D. Kentucky, Central Division
JASON C. SHEPPARD, Petitioner,
FRANCISCO QUINTANA, Respondent.
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
matter is before the Court on the 28 U.S.C. § 2241
petition and various additional motions filed by Petitioner
Jason C. Sheppard, an inmate at the Federal Medical Center in
Lexington, Kentucky. Proceeding without an attorney, Sheppard
filed his petition for a writ of habeas corpus in late 2018
to challenge a prison disciplinary conviction he received and
certain consequences of that conviction. [See R. 1;
R. 10.] The Court asked the Warden to respond to
Sheppard's request for relief, and the matter is now ripe
for the Court's review. For the reasons that follow,
Sheppard's petition is DENIED and his
related pending motions will also be DENIED.
2016, Jason Sheppard was convicted of mail fraud in the
Western District of Pennsylvania. [See, e.g., R. 10
at 2.] As a result of this conviction and a subsequent
violation of Sheppard's term of supervised release,
Sheppard is currently serving a total sentence of forty
months of imprisonment with three years of supervised
release. [R. 23 at 1.]
of his sentence, Sheppard was previously housed at Renewal,
Inc., a halfway house in Pittsburgh, Pennsylvania.
[Id. at 2.] While there, Sheppard received a Federal
Bureau of Prisons (“BOP”) disciplinary
conviction, “Incident Report No. 3141649”, for
escaping the halfway house. [Id.] In addition to the
escape charge, Sheppard's disciplinary record also
contains an incident report for Code 112, Use of Alcohol, and
an incident report for Code 305, possession of unauthorized
items. [See R. 23-1 at 68.] Sheppard's 28 U.S.C.
§ 2241 petition challenges the validity of Incident
Report 3141649 as well as the impact of that incident report
on his ability to participate in the BOP's Residential
Drug Abuse Program (“RDAP”), completion of which
may result in a shortened sentence. Sheppard's petition
argues (1) that the disciplinary hearing underlying Incident
Report 3141649 violated his due process rights; (2) that, on
appeal, the Regional Office ordered either a rehearing of the
matter or expungement of the report within thirty days; and
(3) that neither a hearing nor expungement occurred during
the requisite thirty days. [R. 10.] Sheppard's petition
asks the Court to have Incident Report 3141649 expunged and,
subsequently, for his RDAP participation and shortened
sentence to be reinstated. [Id.]
Sheppard filed his § 2241 petition but before the Warden
filed his response, the BOP conducted a rehearing on Incident
Report 3141649 and expunged it from Sheppard's record. As
a result, the BOP also restored forty-one days of good time
credit to Sheppard's sentence, advancing his projected
release date from October 17, 2019, to September 12, 2019.
[See R. 18; R. 23 at 2.] Further, the BOP reviewed
Sheppard's eligibility for RDAP but found that, due to
the other independent violations previously committed by
Sheppard, he remains ineligible for RDAP even after Incident
Report 3141649 was removed from his record. [R. 23 at 2-3.]
§ 2241 petition is now fully briefed and before the
Court for consideration. The Court addresses Sheppard's
petition and three other pending motions below.
the Court's review of the record, the first issue
presented by Sheppard's § 2241 petition is now moot.
Thanks to the rehearing recently conducted by the BOP,
Incident Report 3141649 was expunged from Sheppard's
record and forty-one days of good time credit were rightfully
restored. [See R. 18.] Accordingly, the arguments in
Sheppard's petition seeking expungement of the incident
report have been addressed, and those claims will therefore
be dismissed as moot. See Berger v. Cuyahoga Cnty. Bar
Ass'n, 983 F.2d 718, 724 (6th Cir. 1993) (quoting
Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir.
1986)) (“Mootness results when events occur during the
pendency of the litigation which render the court unable to
grant the requested relief.”).
the mootness of that one issue does not automatically resolve
the other argument presented in Sheppard's petition.
Though the Warden asserts that Sheppard received “all
the relief he requested . . . and thus the case is now moot,
” [see R. 23 at 6], Sheppard's petition
plainly also requests that his “3621(e) for RDAP”
be reinstated. [See R. 10 at 8, R. 10-1 at 2.]
Sheppard correctly recognizes that “the reinstatement
of [his] 3621(e) early release for RDAP pursuant to Bureau of
Prisons Program Statement 5331.02 remains a viable issue to
be solved” despite the mootness of the incident report
question. [R. 24 at 1.] Nevertheless, Sheppard is not
entitled to the relief he seeks.
to 18 U.S.C. § 3621(e)(2)(B), the BOP may reduce the
length of incarceration for certain nonviolent offenders as
an incentive for their completion of a residential substance
abuse treatment program, such as RDAP. The BOP exercises
discretion regarding whether to grant RDAP graduates early
release or modified conditions of confinement, and even when
an inmate successfully completes RDAP, the BOP still enjoys
the discretion to deny that inmate early release. See
Lopez v. Davis, 531 U.S. 230, 241 (2001); Orr v.
Hawk, 156 F.3d 651, 653-54 (6th Cir. 1998).
petition, Sheppard contends that he was removed from RDAP
solely because of Incident Report 3141649, and upon expulsion
of that incident report, he should be once again allowed to
participate in the program and earn time off of his overall
sentence. In making this argument, Sheppard emphasizes BOP
Program Statement 5331.02, which indicates that inmates
should be given one formal warning before being removed from
RDAP. [See R. 24; R. 24-1.]
Statement 5331.02 notwithstanding, the record before the
Court indicates that additional incident reports
independently prohibit Sheppard from completing RDAP and
earning a shortened sentence under 18 U.S.C. § 3621(e).
See BOP Program Statement 5330.11, §
550.53(g)(3) (explaining that inmates will be immediately
removed from RDAP if a hearing officer finds that they have
committed one of various prohibited acts, including a
prohibited act involving alcohol or “any 100-level
series incident”). [See also R. 23-1 at 4
(explaining Sheppard's other violations); R. 23-1 at 68
(listing an incident report for use of ...