Williams v. Bureau of Prisons

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Everett D. Williams
v. Civil No. 23-cv-509-LM-AJ
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Petitioner, Everett D. Williams, a convicted and sentenced
non-U.S. citizen, filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241, seeking to apply the time credits he has
earned under the First Step Act (“FSA”) to his sentence and to
be placed in “prerelease custody” (a halfway house or home
confinement). Before the court is Williams’s motion for a
preliminary injunction (Doc. No. 4) to enjoin the Federal Bureau
of Prisons (“BOP”) and U.S. Immigration and Customs Enforcement
(“ICE”) from transferring him to FCI Allenwood Low; placing him
in removal proceedings; and potentially making him the subject
of a final order of removal, which would likely affect his
eligibility for the application of FSA time credits. The Warden
objects to the motion for a preliminary injunction (Doc. No. 7).
Background
The court derives the following facts from the record and
matters susceptible of judicial notice. Williams is currently
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serving a 324-month term of imprisonment with a five-year term
of supervision for a drug trafficking conspiracy. See United
States v. Williams, No. 04-20065-cr-Seitz/013 (S.D. Fla. Jun.
26, 2008) (ECF No. 475). Williams’s sentence includes a special
condition of supervision, stating that upon “the completion of
[Williams’s] term of imprisonment,” Williams shall be
surrendered to the custody of ICE for “removal proceedings
consistent with the Immigration and Nationality Act.” Id.
Williams has an ICE detainer. He filed this petition while
he was at FCI Berlin, a medium-security prison with a minimum
security adjacent camp. Anticipating he might be placed in
removal proceedings if he were transferred, Williams filed the
instant motion for a preliminary injunction. As he expected,
the BOP transferred Williams to FCI Allenwood Low in
Pennsylvania shortly thereafter, where he could be placed in
removal proceedings through the interagency “Institutional
Hearing Program” (IHP, for short).
The IHP is a program that operates at some federal prisons,
which provides removal proceedings to sentenced non-U.S.
citizens, prior to their release from BOP custody. See U.S.
Dep’t of Just., Exec. Office for Immig. Rev., Fact Sheet:
Institutional Hearing Program (Jan. 2018)); see also Lajqi v.
Spaulding, No. 18-40212-DHH, 2019 WL 1756652, at *2 & n.1, 2019
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U.S. Dist. LEXIS 68853, at *4 & n.1 (D. Mass. Feb. 6, 2019), R&R
adopted, 2019 WL 1758089, 2019 U.S. Dist. LEXIS 69010 (D. Mass.
Apr. 5, 2019). The IHP implements statutes directing the
Attorney General to place non-U.S. citizen federal offenders in
removal proceedings as soon as practicable after they are
sentenced, see, e.g., 8 U.S.C. § 1228(a); 18 U.S.C.
§ 3624(d)(4)(E)(ii). The IHP allows removal proceedings to
proceed while the person remains in BOP custody, so that ICE may
effect a removal upon the completion of that person’s sentence.
See Lahigi v. Benov, No. 1:10-cv-02211-AWI-SKO-HC, 2013 WL
552008, at *1 n.1, 2013 U.S. Dist. LEXIS 19604, at *2 n.1 (E.D.
Cal. Feb. 12, 2013).
The record here is silent as to whether Williams is
presently in IHP proceedings, although both Williams and the
respondent filed pleadings suggesting that they anticipated such
proceedings would be initiated after his transfer. There is
also no evidence in the record here suggesting that Williams has
become the subject of a final order of removal.
Preliminary Injunction Standard
A petitioner seeking preliminary injunctive relief must
establish that “‘he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
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favor, and that an injunction is in the public interest.’”
Glossip v. Gross, 576 U.S. 863, 876 (2015) (citation omitted).
“If the moving party cannot demonstrate that he is likely to
succeed in his quest, the remaining factors become matters of
idle curiosity.” Arborjet, Inc. v. Rainbow Treecare Sci.
Advancements, Inc., 794 F.3d 168, 173 (1st Cir. 2016) (citations,
quotation marks, and brackets omitted). “To demonstrate
likelihood of success on the merits, [movants] must show ‘more
than mere possibility’ of success – rather, they must establish
a ‘strong likelihood’ that they will ultimately prevail.”
Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v.
Fortuño, 699 F.3d 1, 10 (1st Cir. 2012) (per curiam) (citations
omitted).
Discussion
I. First Step Act
The petitioner asserts that the court must enjoin his
transfer to FCI Allenwood Low and placement in the IHP because
such placement conflicts with the FSA’s sentence credit
provisions. Prisoners with ICE detainers like Williams, seeking
to earn FSA time credits in IHP removal proceedings, remain
eligible to earn and have their FSA time credits applied to
their sentences so long as they are not the subject of final
orders of removal. See 18 U.S.C. § 3632(d)(4)(E)(i). But there
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is a separate provision of the FSA that also applies in
Williams’s circumstances, which provides, in pertinent part, as
follows:
The Attorney General, in consultation with the
Secretary of Homeland Security, shall ensure that any
[removable] alien described in [8 U.S.C. §§ 1182,
1227] who seeks to earn time credits are [sic] subject
to proceedings described in [8 U.S.C. § 1228(a)] at a
date as early as practicable during the prisoner’s
incarceration.
18 U.S.C. § 3632(d)(4)(E)(ii).
The FSA thus directs the Attorney General to take steps to
place some prisoners with ICE detainers, as appropriate, in
removal proceedings while they remain in BOP custody.
Williams’s placement in removal proceedings is entirely
consistent with that part of the FSA. And so, Williams is
mistaken about the conflict between his transfer, IHP placement,
and his rights under the FSA. Accordingly, the petitioner has
not demonstrated any substantial likelihood of success on the
merits of his FSA claim, in support of his motion for a
preliminary injunction.
II. Separation of Powers and Williams’s Sentence
Williams claims here that the terms of his sentence in his
criminal case require the government to wait until he is
released from BOP custody before initiating any removal
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proceedings. And, he argues, the Separation of Powers does not
allow the BOP to place him in IHP removal proceedings.
The petitioner’s claim is premised on a special condition
of his supervision, which states that Williams shall be
surrendered to the custody of ICE for removal proceedings upon
his release from BOP custody. See Jt., United States v.
Williams, No. 04-20065-cr-Seitz/013 (S.D. Fla. Jun. 26, 2008)
(ECF No. 475). That part of Williams’s sentence specifies what
will happen after his release from BOP custody, at the outset of
his term of supervised release. Cf. United States v. Zamudio,
718 F.3d 989, 990 (7th Cir. 2013) (“A district judge may order,
as a condition of supervised release, that a defendant be turned
over to immigration officials for removal proceedings.”). The
sentence does not express anything about where the BOP may place
Williams while he remains in BOP custody during the imprisonment
term of his sentence. Cf. Tapia v. United States, 564 U.S. 319,
331 (2011) (BOP has “plenary control, subject to statutory
constraints,” over prisoner’s place of imprisonment (citing 18
U.S.C. § 3621(b)). Accordingly, Williams has not demonstrated
any likelihood of success on the merits of his separation of
powers argument and his claim regarding the terms of his
sentence, upon which he bases his preliminary injunction motion.
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III. Ex Post Facto Claim
Williams asserts that his transfer to FCI Allenwood Low and
placement in removal proceedings violates the Ex Post Facto
Clause. A law “violates the Ex Post Facto Clause if it ‘changes
the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed.’” United States v.
Amirault, 224 F.3d 9, 14 (1st Cir. 2000) (citation omitted).
“To fall within the ex post facto prohibition, a law must be
retrospective - that is, ‘it must apply to events occurring
before its enactment’ - and it ‘must disadvantage the offender
affected by it,’ by altering the definition of criminal conduct
or increasing the punishment for the crime.” Lynce v. Mathis,
519 U.S. 433, 441 (1997) (citations omitted).
At all relevant times, the BOP had the authority to
designate FCI Allenwood Low as Williams’s place of imprisonment.
Williams has not shown that his transfer to that facility worked
any retrospective change in his punishment. He has failed to
show any likelihood of success on the merits of his ex post
facto claim.
In analogous circumstances, courts have found no ex post
facto violation in the BOP’s recalculation of a non-U.S.
citizen’s sentence to exclude FSA earned time credits, after
that person became the subject of a final order of removal.
See, e.g., Cazarez v. Warden, FCI Ft. Dix, No. CV 23-4457 (KMW),
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2023 WL 5623035, at *2, 2023 U.S. Dist. LEXIS 154641, at *6
(D.N.J. Aug. 31, 2023) (no ex post facto violation in BOP’s
refusal to apply FSA earned time credits after petitioner’s
final order of removal was reinstated). In Cazarez, the court
observed as follows:
Petitioner was not so much deprived of credits he
already earned, as he was simply rendered ineligible
to apply them to his sentence by his reinstated order
of removal. . . . In any event, the same statute which
granted him the ability to earn the credits is the
same enactment which denies him the ability to apply
them to his release, and Petitioner’s entitlement to
earn credits [under the FSA] was thus from the
beginning subject to the proviso that he would be
unable to apply those credits if he were ever the
subject of an order of removal.
Id. (citations omitted).
Williams’s ex post facto claim regarding his placement in
IHP proceedings at FCI Allenwood Low is similarly meritless.
The transfer effected no change whatsoever in Williams’s
sentence. Wherever he serves his term of imprisonment and
however soon his removal proceedings begin, he remains
potentially eligible for the application of FSA time credits,
unless he becomes the subject of a final order of removal or
otherwise fails to satisfy the preconditions of such
eligibility. Accordingly, his motion for a preliminary
injunction is not properly granted on his ex post facto claim.
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IV. Due Process
The petitioner argues that his transfer and placement in
IHP proceedings is fundamentally unfair and violates his right
to due process. To establish a violation of the Due Process
Clause, a petitioner must show that he was deprived of a
protected interest in life, liberty or property and that “‘the
procedures attendant upon that deprivation were
constitutionally’” insufficient. Gonzalez-Fuentes v. Molina,
607 F.3d 864, 886 (1st Cir. 2010) (citation omitted).
“A liberty interest may arise from the Constitution itself,
by reason of guarantees implicit in the word ‘liberty.’”
Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations
omitted). The record does not suggest any basis for finding
that Williams’s transfer to FCI Allenwood Low from FCI Berlin
implicated any protected liberty interest or effected any
atypical or significant hardship relative to the ordinary
incidents of federal prison life. Compare id. at 222-24 (citing
Sandin v. Conner, 515 U.S. 472, 484 (1995), in concluding that
transfer exposing prisoner to supermax restrictive conditions of
confinement imposed “‘atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life’”
and triggered need for due process protections).
To establish that an executive action violates substantive
due process, the petitioner must allege facts showing that the
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government’s conduct “objectively ‘shocks the conscience.’” S.
Commons Condo. Ass’n v. Charlie Arment Trucking, Inc., 775 F.3d
82, 91 (1st Cir. 2014) (citation omitted). More than “humdrum”
legal error must be shown. Id.
Williams’s placement in removal proceedings is entirely
consistent with 18 U.S.C. § 3624(d)(4)(E)(ii). Placing a
prisoner like Williams in removal proceedings before he leaves
federal prison could effectively reduce the time he might
otherwise spend in ICE detention after his release from BOP
custody. There is no legal error or fundamental unfairness
implicated in Williams’s circumstances. Accordingly, Williams
has not shown any likelihood of prevailing on the merits of his
due process claims underlying his preliminary injunction motion.
V. Equal Protection
Petitioner claims that his transfer and placement in the
IHP subjected him to a class-of-one equal protection violation.
To establish a “class of one” claim, the petitioner must show
that he has “‘been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment.’” Donovan v. City of Haverhill, 311
F.3d 74, 77 (1st Cir. 2002) (citation omitted). A “class of
one” claim requires proof of “‘an extremely high degree of
similarity’” between the comparators. Snyder v. Gaudet, 756
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F.3d 30, 34 (1st Cir. 2014) (citations omitted). Also, in
general, a “class of one” petitioner must show that the
differential treatment was motivated by “‘bad faith or malicious
intent to injure.’” Id. (citation omitted).
The petitioner contrasts his circumstances with a subset of
non-U.S. citizen prisoners who have litigated cases in the
District of New Hampshire. Included in that group are prisoners
who were at FCI Berlin, who were then released to supervision,
or placed in prerelease custody, in lieu of being transferred to
FCI Allenwood Low for IHP proceedings.
Williams fails to compare his circumstance to any prisoners
who are similarly situated to him in all relevant respects.
Each of the prisoners he cites had already earned an amount of
FSA time credits that equaled or exceeded the time remaining in
their sentences, at the time of their placement in prerelease
custody or release under the FSA. Williams alone among those he
cites has not demonstrated his own eligibility to have his FSA
time credits immediately applied to his sentence at the time he
filed his § 2241 petition. Moreover, Williams has not compared
himself to any prisoner already at FCI Allenwood Low or a
similar facility with IHP capacity, who is the subject of an
immigration detainer, but not in IHP proceedings; nor has he
shown that the BOP would have considered any of the FCI Berlin
prisoners he cites to have been appropriate candidates for a
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transfer to FCI Allenwood Low, taking into account the factors
the BOP must consider in exercising its authority to designate
prisoners for particular institutions. See, e.g., 18 U.S.C.
§ 3621(b). And finally, Williams has offered no competent
evidence of any prison official’s bad faith or malicious intent,
associated with his transfer and placement in the IHP.
In sum, Williams has failed to demonstrate any likelihood
of success on the merits of the claims upon which he seeks
preliminary injunctive relief. Accordingly, the district judge
should deny his motion for a preliminary injunction.
Conclusion
For the foregoing reasons, the district judge should deny
the petitioner’s motion for a preliminary injunction (Doc. No.
4). Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. See Sch. Union No. 37 v. United Nat'l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by
such objection(s) are precluded on appeal. See id. Failure to
file specific written objections within the specified time
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waives the right to appeal the district court’s order. See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 7, 2024
cc: Everett D. Williams, pro se
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