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Toledo v. Scism

October 14, 2010


The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)


Before the court for disposition is the report and recommendation of Magistrate Judge J. Andrew Smyser (Doc. 7) which proposes that the petition for a writ of habeas corpus (Doc. 1) be denied. The petitioner has filed his objections (Doc. 8) to the report, by way of letter, and the matter is ripe for disposition.


Petitioner John Toledo ("Toledo") is currently incarcerated at Low Security Correctional Institution Allenwood ("LSCI Allendwood"). (Pet. (Doc. 1 at 1)). He is serving a sixty-month sentence for unlawful manufacture of 100 or more marijuana plants and possession of a firearm by a felon, in violation of 21 U.S.C. § 841(A)(1) and 18 U.S.C. § 922(G)(1). (Id.; Decl. of Case Manager Daniel Thomas ("Thomas Decl.") ¶ 2 (Doc. 5-2)). Toledo's projected release date is November 25, 2011. (Thomas Decl. ¶ 2 (Doc. 502)).

On October 26, 2009, Toledo filed an inmate request asking Case Manager Daniel Thomas ("Thomas") for information regarding the Second Chance Act and how to receive more than six months in a Residential Re-entry Center ("RRC"). (Doc. 1 at 14); Pub. L. 110-199, Title II, § 251(a), Apr. 9, 2008, 122 Stat. 692. Thomas responded that the matter would be discussed at Toledo's scheduled program review and that he was currently approved for six months of RRC placement. (Id.)

On November 5, 2009, Toledo filed an Informal Resolution request asking for more than six months in a RRC. He received a response on November 12, 2009 stating that his Unit Team believed that six months was appropriate. (Id. at 15).

On November 13, 2009, Toledo filed a Request for Administrative Remedy asking for more than six months of RRC placement under the Second Chance Act. (Id. at 16). On December 3, 2009, Respondent Warden William A. Scism ("Scism") denied the request. (Id. at 17). Specifically, Scism noted that Toledo had friends on his approved visiting list-- evidencing his ties to the community; that Toledo earned his GED (General Educational Development); that Toledo had carpentry, trucking and culinary skills; and that Toledo had received $587.00 from outside sources-- evidencing significant financial support. (Id.)

On December 14, 2009, Toledo filed a Regional Administrative Appeal. (Id. at 18-19). Toledo stated that he had no significant community ties, no living family, no place to live, an expensive medical condition, and would have difficulty finding employment due to the economy. (Id.) On January 20, 2010, Regional Director J. L. Norwood ("Norwood") explained that, according to Bureau of Prisons ("BOP") policy, inmates are reviewed for RRC placement seventeen to nineteen months prior to their projected release date. (Id. at 20). Norwood, noting that Toledo's projected release date was November 25, 2011, stated that the Unit Team would reconsider Toledo's need for community programs in April 2010. (Id. at 20).

On February 2, 2010, Toledo appealed to the Central Office. (Id. at 21 - 22). The appeal was denied on May 26, 2010 by National Inmate Appeals Administrator Harrell Watts ("Watts"). (Id. at 23). Watts stated that Toledo had been evaluated for RRC placement during his April 10, 2010 program review. (Id.; Thomas Decl. ¶7(Doc. 5-2)). The staff had recommended Toledo for 150 - 180 days of RRC placement. (Doc. 1 at 23; Thomas Decl. ¶7(Doc. 5-2)). Case Manager Thomas states that this recommendation "was based on the fact that [Toledo] had family support, secured residency, and had earned a CDL while incarcerated." (Thomas Decl. ¶7 (Doc. 5-2)).In denying the appeal, the Administrator reminded Toledo that the final decision on the location and length of the placement is within the discretion of a Community Corrections Manager ("CCM"). (Doc. 1 at 23).

Toledo filed another inmate request on April 17, 2010, after his Unit Team review, repeating that his circumstances warranted RRC placement greater than six months and requesting the same. (Id. at 27). A staff member responded that the Unit Team considered a six month placement to be appropriate. (Id.) As of August 11, 2010, Toledo has not been referred to the appropriate CCM for RRC placement. (Thomas Decl. ¶6 (Doc. 5-2)).

On July 22, 2010 Toledo filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking an order directing the BOP to grant Toledo more than six months in a RRC. (Doc. 1 at 9). In his petition, Toledo disputes the Unit Team's recommendation and its application of the Second Chance Act criteria to his case. He particularly disputes the Unit Team's finding that he has a CDL. Toledo clarifies that he has only taken a preparatory class for the written portion of the CDL exam. Toledo admits that he does have skills in home improvement, carpentry, and horticulture. Toledo confirms that he has a GED and has taken a business law class. He denies, however, that he has strong family ties. He notes that his parents and grandparents are deceased and that he has a bad relationship with his siblings. He disputes having strong community ties-- he alleges that he has had only three visits while incarcerated and that two of these visits came from an attorney. He states that he has no money, clothing, home, furniture, or family ties. In addition, Toledo has a skin condition which requires expensive medication. Finally, Toldeo indicates that he will have difficulty finding a job, given the high rate of unemployment. He argues that it is contradictory for the BOP to offer job skill classes to promote inmate employment upon release, but count those classes against a prisoner's RRC placement time-- time which is designed to help integrate prisoners into society and allow them to gain employment.

On September 17, 2010, Magistrate Judge J. Andrew Smyser issued a recommendation that the petition be dismissed as being premature. (Doc. 7). On September 24, 2010, Toledo filed his objections to the report and ...

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