United States District Court, D. South Dakota, Southern Division
ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT DOCKET NO. 14
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
matter is before the court pursuant to 28 U.S.C. § 2241
on the pro se habeas petition of Jacob Wold, an
inmate at the Yankton Federal Prison Camp in Yankton, South
Dakota. See Docket No. 1. The parties have consented
to this magistrate judge deciding their case pursuant to 28
U.S.C. § 636(c). Pending is respondent's motion for
summary judgment Mr. Wold's petition without holding an
evidentiary hearing. See Docket No. 14. For the
reasons more fully discussed below, the court grants
submitted a statement of undisputed material facts.
See Docket No. 18. Mr. Wold did not formally dispute
this statement. In his brief in opposition to
respondent's motion, Mr. Wold set forth his own statement
of facts. Mr. Wold's statement does not conflict with
respondent's statement. The court accordingly sets forth
respondent's statement of facts herein, supplemented
where indicated by additional facts supplied by Mr. Wold.
Wold was sentenced in the United States District Court for
the Western District of Wisconsin on June 26, 2006, to an
88-month term of imprisonment for a federal drug offense.
See Docket No. 18 at ¶ 1. He was also ordered
to serve three years of supervised release following his
release from prison. Id. at ¶ 2. At Mr.
Wold's sentencing hearing, the court applied a two-point
adjustment under the United States Sentencing Guidelines
(“USSG”) because he possessed a firearm or
dangerous weapon in connection with his drug crime.
Id. at p. 4, ¶¶ 17-19.
Wold served out his term of imprisonment and began serving
his three-year term of supervised release on this conviction
on February 17, 2012. Id. at pp. 1-2, ¶ 3.
Thereafter, he became involved in illegal drug activity once
again. Id. at p. 2, ¶¶ 4-6. This activity
resulted in a petition to revoke supervised release being
filed in his 2006 case and a new indictment dated October 3,
2012, both in the Western District of Wisconsin. Id.
In his 2012 case, Mr. Wold entered into a plea agreement and
pleaded guilty to conspiracy to distribute 50 grams or more
of methamphetamine in return for the other charge of the
indictment being dropped. Id. Mr. Wold also admitted
to violating the terms of supervised release in his 2006
case, resulting in his supervised release being revoked.
Id. at ¶¶ 9-10.
April 24, 2013, Mr. Wold was sentenced in both cases.
Id. at pp. 2-3, ¶¶ 7 & 10. The court
imposed a 120-month (10-year) term of imprisonment in his new
2012 case and a 15-month term of imprisonment in his 2006
case. Id. Both sentences were ordered to be served
concurrently with each other. Id.
Bureau of Prisons (“BOP”) aggregated these two
sentences and treated them as a single sentence pursuant to
18 U.S.C. § 3584(c). Id. at p. 3, ¶¶
11-13. Thus, the BOP considers Mr. Wold to be serving a
single 120-month term of imprisonment. Id.
Wold began serving his 10-year sentence of incarceration at
Milan Federal Correctional Institution in Milan, Michigan,
and was subsequently transferred to the Yankton Federal
Prison Camp where he now resides. In June, 2017, while at
Yankton, Mr. Wold interviewed for the residential drug abuse
program (RDAP) and was approved to attend the
program. Mr. Wold believed when he enrolled in RDAP
that he would be eligible for an early release incentive.
However, the Bureau of Prisons (BOP) subsequently informed
him he was not.
21, 2017, the BOP completed an offense review for Mr. Wold.
Id. at p. 3, ¶ 14. Applying a BOP regulation,
28 C.F.R. § 550.55(b), the BOP determined that Mr.
Wold's “current offense” precludes him from
eligibility for the RDAP early release consideration.
Id. at ¶ 15. This is because the “current
offense” (i.e. his 2006 conviction) involved the
carrying, possession, or use of a firearm or other dangerous
weapon or explosives” and “by its nature or
conduct, presents a serious risk of physical force against
the person or property of another.” Id. The
BOP has issued program statement 5162.05 which provides that
an inmate who was convicted of a federal drug crime and who
received an enhancement under the USSG for the use or
possession of a firearm or dangerous weapon is not eligible
for consideration for early release under RDAP. Id.
at ¶ 16. Thus, because the BOP considers Mr. Wold's
2006 conviction to be his current conviction, and because
that conviction included an enhancement under the USSG for
possessing a firearm, the BOP has determined Mr. Wold is not
eligible to be considered for early release under
Wold filed an administrative grievance regarding the RDAP
early release incentive and exhausted his administrative
remedies. He now asks the court to declare the BOP's
calculation of his sentence to be unconstitutional and to
grant habeas relief in the form of declaring him to be
eligible for the early release consideration under the
moves to dismiss Mr. Wold's habeas petition without
holding an evidentiary hearing. See Docket No. 14.
Under the established facts and the law, respondent argues,
Mr. Wold is not entitled to habeas relief. Id. Mr.
Wold opposes respondent's motion. See Docket No.
Summary Judgment Standard
respondent has moved to dismiss under Rule 12(b)(6), or
alternatively for summary judgment under Rule 56 on Mr.
Wold's claim. In support of his motion, the respondent
has submitted a declaration with supporting documents. Docket
19. Respondent has also submitted a statement of undisputed
facts. Docket 18.
12(b)(6), requires the court to evaluate the sufficiency of a
plaintiff's pleading of a claim in his or her complaint.
See Fed.R.Civ.P. 12(b)(6); Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). Courts evaluating a
Rule 12(b)(6) motion are not strictly limited to evaluating
the complaint, however. Dittmer Properties, L.P. v.
F.D.I.C., 708 F.3d 1011, 1021 (8th Cir. 2013). They may
consider “matters incorporated by reference or integral
to the claim, items subject to judicial notice, matters of
public record, orders, items appearing in the record of the
case, and exhibits attached to the complaint whose
authenticity is unquestioned.” Id. (citing
Miller v. Redwood Toxicology Lab., Inc., 688 F.3d
928, 931 n.3 (8th Cir. 2012) (quoting 5B Charles A. Wright
& Arthur R. Miller, Fed. Practice &
Procedure § 1357 (3d ed. 2004))).
56, the rule for summary judgment, allows the court to
consider affidavits, documents, deposition transcripts and
other items extraneous to the complaint in determining
whether to grant the motion. See Fed.R.Civ.P. 56. In
this district, a summary judgment motion also requires the
movant to file, and the nonmovant to respond to, a statement
of undisputed material facts. See DSD L.R. 56.1A and
B. Here, respondent filed a declaration with accompanying
exhibits (such as copies of the judgments from Mr. Wold's
federal criminal files), and a statement of undisputed
material facts in support of his motion to dismiss. Because
the respondent explicitly moved in the alternative for
summary judgment and filed a statement of undisputed facts,
the court construes the respondent's motion as one for
Rule of Civil Procedure 56(a) provides that summary judgment
shall issue in favor of the movant only if there is no
genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. Under Rule
56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate where the moving party “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
court must view the facts, and inferences from those facts,
in the light most favorable to the nonmoving party. See
Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986) (citing United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962)); Helton v. Southland
Racing Corp., 600 F.3d 954, 957 (8th Cir. 2010) (per
curiam). Summary judgment will not lie if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Allison v. Flexway
Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994).
burden is placed on the moving party to establish both the
absence of any genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). Once the movant has met its burden, the
nonmoving party may not simply rest on the allegations in the
pleadings, but must set forth specific facts, by affidavit or
other evidence, showing that a genuine issue of material fact
exists. Anderson, 477 U.S. at 256; Fed.R.Civ.P.
56(e) (each party must properly support its own assertions of
fact and properly address the opposing party's assertions
of fact, as required by Rule 56(c)).
underlying substantive law identifies which facts are
“material” for purposes of a motion for summary
judgment. Anderson, 477 U.S. at 248. “Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id.(citing
10A Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2725, at 93-95
(3d ed. 1983)). “[T]he mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of
material fact.” Id. at 247-48.
the availability of summary judgment turns on whether a
proper jury question is presented: “The inquiry
performed is the threshold inquiry of determining whether
there is the need for a trial-whether, in other words, there
are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be
resolved in favor of either party.” Id. at
250. Here, this matter is well suited to resolution by
summary judgment as there appears to be no dispute of any
facts. The parties' arguments center solely on questions
Analysis of Mr. Wold's Petition for Habeas
bedrock principles require stating before analyzing Mr.
Wold's contentions. A petition seeking habeas relief
under 28 U.S.C. § 2241 is appropriate if the petitioner
is challenging the fact or duration of his confinement.
Preiser v. Rodriquez, 411 U.S. 475, 490 (1973). The
writ may issue if the defendant demonstrates he is in custody
in violation of the federal Constitution, laws, or treaties.
See 28 U.S.C. § 2241(c)(3). Here, the subject
matter of Mr. Wold's request for habeas relief falls
squarely within the ambit of § 2241 because he is not
attacking his underlying conviction, but only the length of
his sentence as calculated by the BOP-i.e. the fact that the
BOP will not consider granting him early release.
even if Mr. Wold demonstrates he is eligible for
consideration of early release by virtue of successfully
completing RDAP, the BOP would have the discretion to grant
him early release, but would not be required to
grant such release. 18 U.S.C. §
3621(e)(2)(B); Lopez v. Davis, 531 U.S. 230,
241 (2001) (“[w]hen an eligible prisoner successfully
completes drug treatment, the [BOP] . . . has authority, but
not the duty, . . . to reduce his term of
imprisonment.”). No. prisoner has any constitutional or
statutory right to early release. Greenholtz v. Inmates
of Neb. Penal and Correctional Complex, 442 U.S. 1, 7
administrative decisions by the BOP in interpreting the grant
of authority to it by Congress under 18 U.S.C. §§
3621-3625 are not subject to judicial review under the
Administrative Procedure Act (“APA”).
See 18 U.S.C. § 3625 (stating that the
provisions of the APA (sections 554, 555 and 701-706)
“do not apply” to any determination, decision or
order under 18 U.S.C. §§ 3621-3625). The BOP has
authority to manage inmate drug treatment programs such as
RDAP by virtue of 18 U.S.C. § 3621. Allowing prisoners
to bring habeas petitions under 28 U.S.C. § 2241 to
challenge the BOP's discretionary determinations made
pursuant to 18 U.S.C. § 3621 would be inconsistent with
the language of 18 U.S.C. § 3625. Reeb v.
Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011).
the BOP acts contrary to established federal law, violates
the Constitution, or exceeds its statutory authority do
courts have jurisdiction to review BOP action under the
specified statutes. Id.; Accord,
Gatewood v. T.C. Outlaw, 560 F.3d 843, 846-47, n. 2
(8th Cir. 2009) (“§ 3625 may well preclude
judicial review of BOP decisions applying the final rule and
program statement to particular inmates.”); Martin
v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998)
(“Accordingly it is apparent that § 3625 precludes
judicial review of agency adjudicative decisions but not of
The BOP Did Not Act Contrary to Established Federal Law, in
Violation of the Constitution, or in ...