United States District Court, W.D. Pennsylvania
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER, Magistrate Judge.
It is respectfully recommended that the petition for a writ of habeas corpus filed by Petitioner, Jose Romero, be denied.
Petitioner is a federal inmate who is incarcerated at FCI McKean, which is located in Bradford, Pennsylvania. He has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in which he contends that this Court should issue an order directing that he be released immediately.
A. Relevant Background
On January 4, 2011, Petitioner was sentenced in the U.S. District Court for the Southern District of Florida to a 61-month term of imprisonment, to be followed by a four-year term of supervised release, for Conspiracy to Possess With Intent to Distribute Cocaine, in violation of 21 U.S.C. § 846. On September 13, 2011, the Bureau of Prisons (the "BOP" or "Bureau") designated Petitioner to FCI McKean.
The next month, Petitioner began the BOP's Residential Drug Abuse Treatment Program ("RDAP"). In the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA"), Pub.L. 103-322, and amendments thereto, Congress directed the BOP to "make available appropriate substance abuse treatment for each prisoner [it] determines has a treatable condition of substance addiction or abuse." 18 U.S.C. § 3621(b). To provide inmates with an incentive to participate in the substance abuse programs, Congress vested the BOP with the authority to reduce the sentences of certain inmates who successfully complete the programs. This authority is set forth in 18 U.S.C. § 3621(e)(2)(B), which provides:
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.
To accomplish the congressional mandate of VCCLEA, the BOP provides a multipronged treatment delivery system, including the RDAP, which consists of three components: (1) a Unit-based residential program lasting between six and 12 months; (2) an institution transition phase, if time allows between completion of the Unit-based component and transfer to a community program; and, (3) a community transitional services component during which the inmate is transferred to a Residential Re-entry Center ("RRC, " formerly known as a halfway house) or to home confinement. 28 C.F.R. §§ 550.53, 550.56. Importantly, "[f]or inmates to successfully complete all components of RDAP, they must participate in [Transitional Drug Abuse Treatment ("TDAT")] in the community [during the third component of the RDAP]. If inmates refuse or fail to complete TDAT, they fail the RDAP and are disqualified for any additional incentives." 28 C.F.R. § 550.56(a). Upon successful completion of the RDAP, and assuming an inmate meets all of the eligibility requirements, the BOP may grant the inmate a sentence reduction of up to 12 months pursuant to § 3621(e)(2)(B).
On August 10, 2012, Petitioner's Unit Team at FCI McKean reviewed him for in placement in an RRC, where he would move on to the third component of the RDAP and participate in the TDAT. His provisional early release date was projected to be November 13, 2013. That was the date he would be released if he successfully completed all components of the RDAP program and received the 12-month sentence reduction under § 3621(e)(2)(B) . Petitioner's Unit Team recommended that Petitioner receive a 180-day RRC placement. Deanna Tronetti, the Unit Team Manager, approved that recommendation. (Resp's Ex. 2c, Community Programming Consideration/Re-Consideration, ECF No. 10-16 at 2).
Petitioner successfully completed the institutional phase of the RDAP at FCI McKean, and on May 21, 2013, he was transferred to the Brooklyn House RRC in New York. At the RRC, Petitioner would participate in the community-based TDAT.
On June 11, 2013, staff at the RRC issued Incident Report Number 2461514 (hereinafter "First Incident Report") to Petitioner. It charged him with Insolence Towards a Staff Member and Violating a Condition of Community Programming, in violation of Codes 312 and 309, respectively. (Resp's Ex. 2e, Center Discipline Committee ("CDC") Packet for Incident Report Number 2461514, ECF No. 10-8 at 2-3). On June 11, 2013, staff issued a second Incident Report, Number 2459269 (hereinafter "Second Incident Report"), which charged Petitioner with Insolence Towards a Staff Member, in violation of Code 312. (Resp's Ex. 2f, CDC Packet, Case No. 2459269, ECF No. 10-19 at 2-3).
Petitioner had CDC hearings for each incident report on June 14, 2013. The CDC determined that Petitioner committed the Code violations as charged. As sanctions, the CDC recommended that Petitioner be transferred to a more secure facility and lose good conduct time. A Discipline Hearing Officer subsequently upheld the decision of the CDC. (Resp's Ex. 2f, ECF No. 10-19 at 7; Resp's Ex. 2e, ECF No. 10-18 at 7).
Because Petitioner was found to have committed Code violations, he was deemed an "RRC failure, " a "Community Treatment Services" failure, and a "Drug Treatment Failure, " and was transferred back to FCI McKean. (Resp's Ex. 1d, Inmate History, ECF No. 10-5 at 2; Resp's Ex. 1e, Psychology Data System Administrative Notation, dated June 20, 2013, ECF No. 10-6 at 2). Petitioner's provisional early release date was removed because he did not complete the TDAT component of the RDAP, which, as noted above, is a prerequisite for a reduction in sentence under § 3621(e)(2)(B). Thus, Petitioner is no longer eligible for the one-year sentence reduction under § 3621(e)(2)(B), and his projected release ...