Roberts v. Cox

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
TIMOTHY MUNRO ROBERTS,
Petitioner,
vs.
J.W. COX, in his capacity as warden of
Yankton Federal Prison Camp,
Respondent.
4:20-CV-04187-KES
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AS MOOT
AND DENYING PETITIONER’S
MOTION FOR IMMEDIATE RELEASE
Petitioner, Timothy Munro Roberts, brings this pro se petition for writ of
habeas corpus under 28 U.S.C. § 2241. Docket 1. Roberts seeks immediate
application of his earned time credits under 18 U.S.C. § 3621(h)(4). See id. at 2.
The petition was assigned to a United States Magistrate Judge under 28 U.S.C.
§ 636(b)(1)(B) and this court’s October 16, 2014, standing order.
Respondents moved to dismiss Roberts’s petition for lack of subject-
matter jurisdiction and for failure to state a claim. Docket 36. The Magistrate
Judge entered a report and recommendation recommending Roberts’s petition
be dismissed without prejudice for lack of ripeness. Docket 54 at 5-7. Roberts
objected to the report and recommendation. Docket 55. This court requested
additional briefing from respondent on the Bureau of Prison’s (BOP) time credit
calculation policy regarding First Step Act time credits for Apprenticeship
Training programs. Docket 56 at 5. At that time, the BOP was implementing
the time credits provisions of the First Step Act under the proposed rule put
Case 4:20-cv-04187-KES Document 75 Filed 03/11/22 Page 1 of 7 PageID #: <pageID>

2
forth by the Department of Justice (DOJ) on November 25, 2020. See FSA Time
Credits, 85 Fed. Reg. 75268-01 (Nov. 25, 2020).
Since this court issued its order requesting additional briefing, the DOJ
announced and published the final rule on implementation of the First Step
Act, which varies significantly from the proposed rule in the calculation of time
credits. See FSA Time Credits, 87 Fed. Reg. 2705 (Jan. 19, 2022). Under the
final rule, Roberts had enough time credits to earn an immediate referral to a
residential reentry center. See Docket 61. Roberts was transferred to the
Dismas House Residential Reentry Center in St. Louis, Missouri, on February
3, 2022. See Docket 63 at 1. Because he had not yet successfully completed
the community treatment phase of RDAP, the BOP required him to spend at
least 120 days in a residential reentry center in order to do so and receive the
early release RDAP incentive under 18 U.S.C. § 3621(e)(2)(B). See id. Thus,
Roberts’s projected release date is now June 2, 2022. Id. at 1-2.
Before being transferred to Dismas House but following the publishing of
the final rule on implementation of the First Step Act, Roberts moved for
immediate release, arguing that he was being held past his imposed sentence.
Docket 60. Even after being transferred to Dismas House, Roberts maintains
that he is owed either immediate release or being placed on supervised release
to be allowed to complete RDAP from home. Docket 72 at 14. He argues that he
is owed more time credits than he has been credited under the final rule. See
id. He also argues that inmates at Dismas House who were in the middle of the
community treatment phase of RDAP when the final rule was published were
Case 4:20-cv-04187-KES Document 75 Filed 03/11/22 Page 2 of 7 PageID #: <pageID>

3
released and either allowed to complete treatment remotely or were not
required to complete treatment. Id. at 2, 6. He claims that this is a violation of
his equal protection rights because he is receiving different treatment than
those inmates. Id. at 2. Last, he argues that he was awarded the year reduction
on his sentence by the BOP for successful completion of RDAP when he started
the program, with the condition that he complete it. Id. at 12.
Respondent argues that Roberts’s habeas petition is now moot and that
the issues for which he seeks judicial review in his motion for immediate
release are “non-reviewable because the BOP has the statutory discretion to
decide where to house inmates and when to grant early release[.]” Docket 70 at
1. Respondent argues that the BOP has discretion to determine whether
inmates who redeem time credits under the First Step Act are granted
supervised release or are transferred to home confinement or a residential
reentry center. Id. at 2. Respondent further argues that the one-year sentence
reduction requires successful completion of all phases of RDAP, including the
community treatment phase. Id. Although other inmates were treated
differently, Respondent argues that those inmates were outside of a BOP
institution at the time the final rule was implemented. Id.
Rulemaking decisions by respondent are subject to judicial review, but
adjudicative decisions in a specific case are not subject to judicial review. See
18 U.S.C. § 3625; see also Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir.
1998) (“[I]t is apparent that § 3625 precludes judicial review of agency
adjudicative decisions but not of rulemaking decisions.”). Here, Roberts has
Case 4:20-cv-04187-KES Document 75 Filed 03/11/22 Page 3 of 7 PageID #: <pageID>

4
raised challenges to both respondent’s rulemaking decisions and respondent’s
adjudicative decisions in this case. Specifically, his arguments regarding his
placement, his eligibility for the one-year reduction under RDAP, and his equal
protection rights are challenges to the BOP’s rulemaking decisions because he
argues that the BOP does not have the discretion to make the decisions that it
has made. But his argument regarding the BOP’s calculation of his time credits
is a challenge to the BOP’s adjudicative decisions in this case, which are not
subject to judicial review.
The First Step Act grants discretion to the BOP to determine placement
of inmates who have earned enough time credits to receive a sentence
reduction. 18 U.S.C. § 3632(d)(4)(C) (“Time credits earned under this paragraph
by prisoners who successfully participate in recidivism reduction programs or
productive activities shall be applied toward time in prerelease custody or
supervised release.” (emphasis added)). Prerelease custody includes home
confinement or placement at a residential reentry center. 18 U.S.C.
§ 3624(g)(2). Further, the BOP cannot grant an inmate more than twelve
months of supervised release as a sentence reduction for earned time credits
under the First Step Act. 18 U.S.C § 3624(g)(3). Thus, other than the twelve-
month limit on supervised release, the BOP has the discretion to place inmates
who are eligible for sentence reductions because of time credits under the First
Step Act.
The one-year sentence reduction for successful completion of RDAP is
also at the discretion of the BOP. 18 U.S.C. § 3621(e)(2)(B) (“The period a
Case 4:20-cv-04187-KES Document 75 Filed 03/11/22 Page 4 of 7 PageID #: <pageID>

5
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.” (emphasis added)). Further, the BOP has defined
successful completion as completing all three components of RDAP, including
the community treatment phase. 28 C.F.R. § 550.53(a). 18 U.S.C. § 3621(e) is
silent on the definition of successful completion. “If Congress has explicitly left
a gap for the agency to fill, there is an express delegation of authority to the
agency to elucidate a specific provision of the statute by regulation.” Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). When
this is the case, agency regulations “are given controlling weight unless they
are arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844.
Thus, the BOP has not exceeded its authority in defining successful completion
because its requirement that prisoners complete all three components is not
arbitrary, capricious, or manifestly contrary to the statute.
Roberts’s equal protection rights are not violated by the BOP’s exercise of
its discretion. The Fifth Amendment due process clause governs equal
protection claims against the United States, and the United States Supreme
Court has explained that an equal protection analysis is “precisely the same”
under the Fifth and Fourteenth Amendments. Weinberger v. Wiesenfeld, 420
U.S. 636, 638 n.2 (1975). The equal protection clause of the Fourteenth
Amendment is “a direction that all persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
Case 4:20-cv-04187-KES Document 75 Filed 03/11/22 Page 5 of 7 PageID #: <pageID>

6
Roberts alleges that he is being treated differently than inmates who were
housed at residential reentry centers at the time that the final rule was
implemented. See Docket 72 at 2. But Roberts, as an inmate not housed at a
residential reentry center when the final rule was implemented, is not similarly
situated to those inmates who were housed at a residential reentry center at
that time. There is no equal protection violation when the government treats
differently situated persons differently.
Determining the placement of inmates is within the BOP’s discretion,
including inmates who have received reduced sentences under the earned time
credit provisions of the First Step Act and inmates who are participating in or
have completed RDAP. The BOP has fairly exercised its discretion in its
rulemaking regarding inmate placements, and Roberts’s equal protection rights
have not been violated. Roberts’s initial habeas petition is now moot because
he has received a reduced sentence under the earned time credit provisions of
the First Step Act, and his motion for immediate release is denied.
Thus, it is ORDERED:
1. That Roberts’s petition for writ of habeas corpus (Docket 1) is denied as
moot.
2. That respondent’s motion to dismiss for lack of jurisdiction and for
failure to state a claim (Docket 36) is denied as moot.
3. That the Magistrate Judge’s report and recommendation (Docket 54) is
not adopted because it is moot.
Case 4:20-cv-04187-KES Document 75 Filed 03/11/22 Page 6 of 7 PageID #: <pageID>

7
4. That 	Roberts’s 	objection 	to 	the 	Magistrate 	Judge’s 	report 	and
recommendation (Docket 55) is denied as moot.
5. That Roberts’s miscellaneous motions regarding his petition for writ of
habeas corpus (Dockets 43, 44, 47, 52, 53) are denied as moot.
6. That Roberts’s motion for immediate release (Docket 60) is denied.
7. That Roberts’s motion to electronically file documents (Docket 73) is
granted.
Dated March 11, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
Case 4:20-cv-04187-KES Document 75 Filed 03/11/22 Page 7 of 7 PageID #: <pageID>