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Levon v. Warden Francisco Quintana

July 14, 2009


The opinion of the court was delivered by: Sean J. McLaughlin United States District Judge


This petition for writ of habeas corpus was received by the Clerk of Court on November 17, 2008 and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. Petitioner, an inmate at the Federal Correctional Institution at McKean in Bradford, Pennsylvania, has filed a document [31] styled "NOTICES' [sic] TO THIS COURT; AND MOTION FOR MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION FOR ISSUANCE OF PRELIMINARY INJUNCTION ORDER PURSUANT TO FED. CIV. R. 65(a)(1)," which is in the nature of a motion seeking preliminary injunctive relief. The Petitioner previously filed three documents of a similar nature, which I addressed collectively in a Memorandum Order [43] dated July 8, 2009.

Petitioner's motion, like his prior motions, concern his placement in FCI McKean's Residential Drug Abuse Program ("RDAP") and his desire to complete the program no later than September 30, 2009 in order to remain eligible for the full 24-months of incentives available to certain federal prisoners under 18 U.S.C. §§ 3624(c)(1) and 3621(e)(2)(B). Petitioner's chief complaint is that he was not placed into the RDAP program until April of 2009 and, given the current structure of the program, which consists of half-day programming lasting some 10 and 1/2 months, he will not be able to complete the RDAP until on or about March 6, 2010. Under these circumstances, Petitioner avers, he will have only about 17 months remaining on his sentence and, as he sees it, he will have lost out on approximately seven months worth of congressional benefits.

We begin with a review of the relevant statutes. Title 18, U.S.C. § 3621(b) addresses the placement of inmates committed to the custody of the Federal Bureau of Prisons and states, in part, that the Bureau "shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." !8 U.S.C. § 3621(b). The statute further provides an incentive to inmates who successfully complete such treatment programs, as set forth in subsection (e)(2):

(e) Substance abuse treatment.--

(2) Incentive for prisoners' successful completion of treatment program.--

(A) Generally.-- Any prisoner who, in the judgment of the Director of the Bureau of Prisons, has successfully completed a program of residential substance abuse treatment provided under paragraph

(1) of this subsection, shall remain in the custody of the Bureau under such conditions as the Bureau deems appropriate. If the conditions of confinement are different from those the prisoner would have experienced absent the successful completion of the treatment, the Bureau shall periodically test the prisoner for substance abuse and discontinue such conditions on determining that substance abuse has recurred.

(B) Period of custody.-- The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.

18 U.S.C. § 3621(e)(2)(A) & (B). Thus, under these provisions, an inmate's successful completion of a RDAP program can result in the discretionary reduction of his sentence by as much as one year.

Section 3624 of Title 18, commonly known as the Second Chance Act, addresses various aspects of a prisoner's release from BOP custody, including pre-release custody. In pertinent part, the statute provides:

(c) Prerelease custody.--(1) In general.-- The Director of the Bureau of Prisons shall, to the extent practicable, 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 re-entry of that prisoner into the community. Such conditions may include a community correctional facility.

18 U.S.C. § 3624(c)(1). Thus, under § 3624(c)(1), an inmate can serve up to 12 months of his sentence in prerelease custody, such as a community correctional facility.

As I discussed in my Memorandum Order of July 8, 2009, the present quandary arises because Petitioner's projected release date is September 30, 2011. Petitioner claims that, in order to remain eligible for the full 12-month sentence reduction under ยง3621(e)(2)(B) and up to12 months in a pre-release setting under ...

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