May 3, 2013
William Phillip Murphy, Petitioner,
Federal Bureau of Prisons, et al., Respondents.
REPORT AND RECOMMENDATION
DAVID K. DUNCAN, Magistrate Judge.
On June 28, 2012, William Phillip Murphy filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, and following the district court's dismissal with leave to amend, on September 18, 2012 he filed an Amended Petition. In his Amended Petition he argues that he is eligible for early release following completion of the Residential Drug Abuse Program (RDAP) authorized by 18 U.S.C. § 3621(e). He argues that because he was incarcerated in the Fifth Circuit, where he was ineligible for early release, instead of in the Ninth Circuit, where he would have been eligible, he was wrongly denied the opportunity for early release by being held in Texas rather than in Arizona. Murphy has fully exhausted his administrative remedies prior to filing his federal petition. Respondents contend that Murphy is ineligible in either jurisdiction based upon his criminal history, and therefore the petition should be denied and dismissed with prejudice. The Court agrees and recommends that the petition be denied.
Following his conviction for Felon in Possession of a Firearm, Murphy was sentenced in the District of Arizona on April 1, 2010, to a term of 45 months followed by 3 years of supervised release. He was designated to FCI Bastrop, Texas, and arrived there on May 28, 2010 (Doc. 10, Exh 1, ¶ 3). Murphy entered into RDAP on October 1, 2010, and began participating on October 22, 2010 (Doc. 5, Exh 1; Doc. 10, Exh 1, ¶ 2). On October 28, 2010, the BOP's Designations and Sentence Computation Center computed Murphy's eligibility for a § 3621(e) sentence reduction, and denied him an early release incentive, as precluded under Program Statement 5162.05, based on his current conviction for Felon in Possession, and a prior conviction for Aggravated Assault, pursuant to 28 C.F.R. § 550.55 ( Id., Attachment 2). Murphy completed RDAP on July 22, 2011 ( Id., Exh 1, ¶ 2). Murphy is currently serving a three-year term of supervised release ( Id., Exh 1, ¶ 5).
Section 3621(b)(3) allows for early release as a discretionary incentive that may be granted by BOP to prisoners who successfully participate in the RDAP. Under the current regulations,  several categories of inmates, however, are not eligible for early release, including inmates with a prior felony or misdemeanor conviction for aggravated assault or an offense that involved the carrying, possession, or use of a firearm or other dangerous weapon. 28 C.F.R. § 550.55(b)(4), (5). Murphy has a prior 1989 state conviction for aggravated assault, and has a current conviction for Felon in Possession of a Firearm. See Exh 1, Attachments 5, 6; ¶ 3, Attachment 3. Murphy is therefore ineligible for early release.
Murphy also argues that he was denied a request for a "nearer release transfer" to the District of Arizona, an incentive for successful participation in RDAP. See 28 C.F.R. § 550.54(a)(2)(iii). He maintains that if he had been transferred, he would have been eligible for early release. The Court has already ruled that Murphy would not have been eligible for early release, so the transfer would have made no difference. In addition, Murphy characterizes BOP's decision as arbitrary and capricious, an abuse of discretion, and contrary to their own program statement. Murphy alleges that his request was denied in order to deliberately and selectively limit his incentives. The Court lacks jurisdiction to review individualized RDAP determinations made pursuant to § 3621. Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011). Judicial review is limited to allegations that such action is contrary to established federal law or the United States Constitution, or that BOP exceeded its statutory authority. Id. Murphy does not allege a constitutional or statutory violation, or that BOP exceeded its statutory authority. Noncompliance with a BOP program statement is not a violation of federal law. Id. at 1227.
IT IS THEREFORE RECOMMENDED that Murphy's Amended Petition for Writ of Habeas Corpus be denied and dismissed with prejudice (Doc. 5).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.