IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION 

RODNEY CHIMNEY, §

Petitioner, §

§

v. § Civil Action No. 4:05-CV-0647-Y

§

COLE JETER, WARDEN, § 

FEDERAL MEDICAL CENTER, §

FORT WORTH, § 

Respondent. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for

the Northern District of Texas. The findings, conclusions and recommendation of the United States

Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. §

2241. 

B. PARTIES

Petitioner Rodney Chimney, Reg. 31331-077, is a federal prisoner incarcerated in the Federal

Medical Center in Fort Worth, Texas.

Respondent Cole Jeter is Warden of the Federal Medical Center in Fort Worth, Texas.

 

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C. PROCEDURAL HISTORY

Chimney is serving a 120-month term of imprisonment for his conviction for selling,

distributing or dispensing narcotics within 1,000 feet of a school and aiding and abetting in the

Dallas Division. See CM/ECF, Criminal Docket for Case # 3:97-CR-373-3. His projected release

date is October 22, 2006. See U.S. Department of Justice, Federal Bureau of Prisons/Inmate

Locator, available at http://www.bop.gov. During his incarceration, Chimney signed an agreement

and participated in a residential drug abuse treatment program which provisionally qualified him for

early release consideration under 18 U.S.C. § 3621(e). Following completion of the program,

Chimney was initially recommended for placement in a community corrections center (CCC). See

18 U.S.C. § 3624(c). Later, however, he was denied placement based upon the recommendation of

the United States Probation Office (USPO) and his past criminal conduct. (Application for Writ of

Habeas Corpus, Exhibits A-E.) The denial of CCC placement disqualifies Chimney from early

release under Bureau of Prisons regulations. See 28 C.F.R. 550.58(a)(1)(v). Chimney’s requests

for administrative relief were denied. (Id. Exhibits E, F.) 

D. DISCUSSION

Chimney argues that, based on the Bureau’s initial grant of provisional early release

eligibility under § 3621(e)(2), notification of his “10% release date” as contemplated in § 3624(c),

and CCC placement approval, he had a “settled expectation” to those benefits as a matter of due

process and that the denial of early release and CCA placement was, thus, an abuse of the Bureau’s

discretion. (Application for Writ of Habeas Corpus at 3; Pet’r Rebuttal at 3.) 

18 U.S.C. § 3621(e)(2)(B) allows the Bureau to reduce the sentence of a prisoner convicted

of a nonviolent felony offense by up to one year upon successful completion of a drug abuse

 

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treatment program. 18 U.S.C. § 3621(e)(2)(B); see also 28 C.F.R. §§ 550.50-550.60. Section

3621(e)(2)(B) explicitly leaves sentence reductions to the discretion of the Bureau. See Lopez v.

Davis, 531 U.S. 230, 231 (2001); Wottlin v. Fleming, 136 F.3d 1032, 1035 (5th Cir. 1998); Venegas

v. Henman, 126 F.3d 760, 765 (5th Cir. 1997). If a prisoner meets the prerequisites of § 3621(e)–

conviction of a nonviolent offense and successful completion of drug treatment, the Bureau has the

authority, but not the duty, to reduce his term of imprisonment. Lopez, 531 U.S. at 241. The

exclusion of prisoners who cannot complete a community-based program from early-release

eligibility does not conflict with the purposes underlying the statute and is a permissible exercise

of the Bureau’s discretion under § 3621(e). See 28 C.F.R. § 550.58(a)(1)(v); Rublee v. Fleming, 160

F.3d 213, 217-17 (5th Cir. 1998). Although the Bureau’s initial grant of provisional § 3621

eligibility may have given Chimney false hope or an expectation of early release, it is well settled

that there is no constitutionally protected right of a convicted person to early release under §

3621(e). Wottlin, 136 F.3d at 1036; Venegas, 126 F.3d at 765. Similarly, there is no constitutionally

protected right to CCC placement pursuant to § 3624(c) during the last ten percent of a prisoner’s

term of imprisonment. See Prows v. Fed. Bur. of Prisons, 981 F.2d 466, 469-70 (10th Cir. 1992);

see also United States v. Laughlin, 933 F.2d 786, 789 (9th Cir. 1991) (“Nothing in the language of

section 3624(c) mandates that all prisoners pass through a community treatment center en route to

free society.”). 

Chimney also argues that the Bureau’s “policy of contacting the Probation Office and

receiving a recommendation as to CCC placement after completion of DAP” violates the notice-andcomment requirements of the Administrative Procedure Act (APA). The National Inmate Appeals

Administrator concluded that the Bureau’s actions were within the authority of the Warden as set

 

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The parties did not provide a copy of Program Statement 7310.04, however the Bureau’s

program statements are available on the Internet. U.S. Department of Justice, Federal Bureau of

Prisons/Freedom of Information Act/Policy/Bureau Program Statements (policies), available at

http://www.bop.gov.

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forth in Program Statement 7310.04.1

 Program Statement 7310.04 provides that the Warden should

consider contacting the Chief USPO in the release district to seek guidance on a CCC referral when

there exists a basis for significant doubt regarding whether the inmate currently poses a threat to the

community. Such a general policy is not a rule of the sort subject to the notice-and-comment

requirements of the APA. The notice-and-comment provision of the APA applies when an agency

promulgates a substantive “legislative-type” rule intended to have binding legal effect. See Chrysler

Corp. v. Brown, 441 U.S. 281, 316 (1979). The notice-and-comment provision expressly excludes

interpretative rules, general statements of policy, and rules of agency organization, procedure, or

practice. 5 U.S.C. § 553(b)(A).

II. RECOMMENDATION

Chimney’s petition for writ of habeas corpus should be denied.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATION

AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions, and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is extending the deadline within which to file

specific written objections to the United States Magistrate Judge’s proposed findings, conclusions,

and recommendation until January 31, 2006. The United States District Judge need only make a de

 

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novo determination of those portions of the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. §

636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual

finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice,

from attacking on appeal any such proposed factual finding or legal conclusion accepted by the

United States District Judge. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

Cir. 1996) (en banc op. on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until January 31, 2006,

to serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing

date of the objections. 

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby

is returned to the docket of the United States District Judge. 

SIGNED January 10, 2006.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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