The opinion of the court was delivered by: Judge Munley
Before the court is the petitioner's objection (Doc. 12) to Magistrate Judge J. Andrew Smyser's recommendation (Doc. 11) that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1), motion for preliminary injunction (Doc. 2), and motion for summary judgment (Doc. 3) be denied. Having been fully briefed, the matter is ripe for disposition.
Petitioner Fonso Wires ("Wires") is currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania ("USP Lewisburg"). (Pet. for Writ of Habeas Corpus (hereinafter "Pet.") (Doc. 1 at 1)). Petitioner Wires is serving the remainder of a 245-month sentence for violating 18 U.S.C. § 922(g) and § 924(a) (felon in possession of a firearm). ("Sentence Monitoring Computation Data", Pet'r Ex. A (Doc. 2 at 3)). Petitioner Wires is projected to be released from Federal Bureau of Prisons's ("BOP") custody on November 22, 2010. (Id.)
On April 21, 2009 Petitioner Wires requested a twelve-month placement on supervised release. (Inmate Request to Staff, Pet'r Ex. D (Doc. 2 at 17)). Wires stated that his eighteen years of imprisonment, the economic recession, and the fact that he is a Muslim constituted "extraordinary justification" for his request. (Id.) Matthew Rodarmel ("Rodarmel"), case manager at USP Lewisburg, responded on April 26, 2009 that Wires's case would be reviewed at the end of May. (Id.) The BOP Mid-Atlantic Regional Office received Wires's regional appeal on April 27, 2009. (Receipt-- Administrative Remedy, Pet'r Ex. E (Doc. 2 at 19)).
On May 6, 2009, Wires's unit team reviewed his pre-release needs and recommended a placement date in a residential re-entry center ("RRC") sixty days prior to his release date. (BOP RRC Consideration Memo (Doc. 9-2 at 55)). According to Rodarmel this recommendation was based upon an evaluation of the five factors mandated by 18 U.S.C. § 3621(b). (Rodarmel Decl. at ¶ 10, Resp. Ex. 1 (Doc. 9-2 at 4)). Rodarmel states:
This determination was partially based on the nature of Wires' instant offense, in addition to Wires' history and characteristics. Specifically, while the length of Wires' instant offense indicates a need for transitional services, Wires' vast criminal history indicates a strong need for public safety.
Wires' criminal history reveals numerous convictions for violent crimes, including two convictions for armed robbery, one conviction for attempted murder (he shot a police officer in the head during the commission of his instant federal offense), one conviction for escape, and one conviction for assault during the commission of the escape. As noted by the United States Probation Office in the Presentence Report, Wires "[h]as demonstrated a propensity for recidivism, and a disturbing increase in the amount of violence involved in each crime." (Id.)
Rodarmel also states that Wires's recommendation accounted for the fact that "Wires has a relatively long sentence; available resources within the release district; and his history and characteristics, noting he has secured a release address with his brother in Quincy, Illinois, he has failed to secure employment, has a high school diploma and a vast criminal history." (Id. at ¶ 12). Finally, Wires's BOP disciplinary record shows incidents of: fighting another inmate, injuring a correctional officer, assaulting another inmate resulting in a serious injury, threatening bodily harm, and assaulting another inmate without resulting in a serious injury. (Chronological Disciplinary Record, Resp. Ex. 1 (Doc. 9-2 at 57, 58)).
Wires's recommended RRC placement has not been forwarded to the Community Corrections Manager. (Decl. of Matthew Rodarmel at ¶ 12, Resp. Ex. 1 (Doc. 9-2 at 4)). The BOP Central Office received Petitioner Wires's appeal on August 5, 2009. (Receipt-- Administrative Remedy, Ex. F (Doc. 2 at 21)).
On November 16, 2009, Wires filed this petition for a writ of habeas corpus pro se, arguing that Warden Bledsoe violated Wires's right to due process under the Fourteenth Amendment by failing to consider Wires for twelve months of placement in an RRC pursuant to 18 U.S.C. § 3624(c) or alternatively as an "extraordinary justification" under Miller v. Whitehead, 527 F.3d 752 (8th Cir. 2008). On November 16, 2009 Wires also filed motions for summary judgment on the claims underlying his petition for habeas corpus and for a preliminary injunction to be given a psychological examination. (Docs. 3, 2). Respondent Warden Bledsoe filed his response on December 11, 2009. (Doc. 9).
Wires filed his traverse on December 21, 2009. (Doc. 10). Wires's specifically denies that he has secured a residence with his brother or that he has any significant resources upon which to rely. (Id.) Wires argues in his traverse that, by recommending him for only sixty days of RRC placement, respondent is covertly retaliating against Wires for previously filing grievances and challenging the conditions of his confinement. (Id.) In his traverse Wires requests that he be released from the special management unit program ("SMUP") within USP Lewisburg and that he be returned to the general prison population. (Id.)
On December 23, 2009 Magistrate Judge Smyser submitted his report and recommendation. (Doc. 11). Judge Smyser recommends denying the petition for a writ of habeas corpus, the motion for summary judgment, and the motion for a preliminary injunction. (Doc. 11). Petitioner Wires objects to the report and recommendation. (Doc. 12). Respondent Warden Bledsoe has filed a brief ...