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 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RENNEL PITTS,

Petitioner, Civil Action No. 2:09-12329

v. HONORABLE VICTORIA A. ROBERTS

UNITED STATES DISTRICT COURT

C. ZYCH,

Respondent,

_____________________________________/

OPINION AND ORDER DENYING THE 

PETITION FOR WRIT OF HABEAS CORPUS

Rennel Pitts, (Petitioner), incarcerated at the Federal Correctional Institution in

Milan, Michigan [FCI-Milan], has filed a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2241. Petitioner seeks relief from the Bureau of Prisons’ (BOP) determination

that he is ineligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B) for his

successful completion of a drug treatment program. For the reasons stated below, the

petition for writ of habeas corpus is SUMMARILY DISMISSED.

I. Background

Petitioner is serving a sentence of forty six months imprisonment for his

conviction out of the United States District Court for the Eastern District of Michigan for

conspiracy to distribute cocaine, pursuant to 21 U.S.C. § 841(a). See United States v.

Pitts, U.S.D.C. No. 05-CR-80955-DT (E.D. Mich.)(Cohn, J.). 

While incarcerated at FCI-Milan, Petitioner entered the BOP’s Residental Drug

Abuse Treatment Program(RDAP). Petitioner has applied for a one year reduction in his

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sentence with the BOP pursuant to 18 U.S.C. § 3621(e)(2)(B), but has been denied

eligibility for a reduction of his sentence because of a prior conviction for an unspecified

violent crime that is 27 years old. 

Petitioner seeks habeas relief on two grounds. Petitioner first contends that the

BOP’s classification and exclusion of prisoners who have a prior violent offense from

being eligible for the one year sentence reduction is arbitrary, capricious, and contrary to

law, because “the BOP failed to articulate a rational basis between the facts found and the

choices made.” Secondly, Petitioner contends that the BOP’s exclusion of inmates who

have prior violent convictions from consideration for early release pursuant to 18 U.S.C.

§ 3621(e)(2)(B) is arbitrary and capricious, because the BOP regulations do not contain a

“staleness” or “statute of limitations” component that would prevent the BOP from using

prior convictions that are ten or more years old to exclude an inmate from eligibility for

the one year sentence reduction. 

II. Discussion

A petition for writ of habeas corpus filed by a federal inmate under 28 U.S.C. §

2241 is proper where the inmate is challenging the manner in which his or her sentence is

being executed. Capaldi v. Pontesso, 135 F. 3d 1122, 1123 (6th Cir. 1998); See also Hall

v. Eichenlaub, 559 F. Supp. 2d 777, 779-80 (E.D. Mich. 2008). A district court has

jurisdiction over a federal prisoner’s habeas corpus petition challenging the determination

by the Bureau of Prisons that he or she is ineligible for a sentence reduction under 18

U.S.C.§ 3621(e)(2)(B). See Perez v. Hemingway, 157 F. Supp. 2d 790, 793 (E.D. Mich.

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2001).

As an initial matter, review of the BOP’s decision to deny Petitioner a sentence

reduction pursuant to § 3621(e)(2)(B) is not governed by the Administrative Procedure

Act (APA), as petitioner contends. 18 U.S.C. § 3625 provides that 5 U.S.C. §§ 554, 555,

and 701-706, the judicial review and notice and comment provisions of the APA, “do not 

apply to the making of any determination, decision or order” made by the BOP pursuant

to the provisions of 18 U.S.C. §§ 3621, et seq. See e.g. Orr v. Hawk, 156 F. 3d 651, 655,

n. 1 (6th Cir. 1998)(BOP exempt from the judicial review and notice and comment

provisions of the APA); See also Davis v. Beeler, 966 F. Supp. 483, 489-90 (E.D. Ky.

1997). 

The Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA)

amended 18 U.S.C. § 3621 to require the BOP to “make available appropriate substance

abuse treatment for each prisoner the Bureau determines has a treatable condition of

substance addiction or abuse.” 18 U.S.C. § 3621(b). Pursuant to 18 U.S.C. §

3621(e)(2)(B), the Bureau of Prisons may, in its discretion, reduce the sentence of an

inmate convicted of a nonviolent offense by up to one year following the successful

completion of a substance abuse treatment program:

[t]he period a 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.

Id. 

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To provide guidelines for the implementation of the early release program, the

BOP adopted 28 C.F.R. § 550.58. This regulation states in pertinent part:

(a) Additional early release criteria. (1) As an exercise of the discretion

vested in the Director of the Federal Bureau of Prisons, the following

categories of inmates are not eligible for early release:

***

(iv). Inmates who have a prior felony or misdemeanor conviction for

homicide, forcible rape, robbery, or aggravated assault, or child sexual

abuse offenses.

28 C.F.R. § 550.58(a)(1)(iv).

Similarly, Section 6.1.1 of Program Statement 5330.10, entitled “EARLY

RELEASE QUALIFICATIONS,” denies eligibility for early release to those inmates who

have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or

aggravated assault, or child sexual abuse offenses. Section 6. 1. 1(a)(1)(iv). 

In Lopez v. Davis, 531 U.S. 230, 238-245 (2001), the Supreme Court upheld §

550.58 and determined that the BOP, pursuant to its discretion to prescribe additional

early release criteria, is entitled to categorically exclude certain inmates from early

release. The Supreme Court stated that “the Bureau need not blind itself to preconviction

conduct that the agency reasonably views as jeopardizing life and limb.” Id. at 242. “The

Bureau may consider aspects of the conduct of conviction, even though the conviction is

a criterion of statutory eligibility.” Id at 243. Moreover, the Supreme Court rejected the

argument that the BOP was required under § 3621(e) to make a case by case assessment

of eligibility for early release. Id. at 243-44. 

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Petitioner does not specify the prior conviction that was used by the BOP to deny

him early release, but he implicitly concedes that the prior conviction was for a violent

offense. Petitioner, however, contends that the BOP should not have used this prior

conviction to exclude him from eligibility for a one year sentence reduction because the

conviction was 27 years old. Contrary to Petitioner’s contention, there is no “staleness”

or “statute of limitations” component to the BOP’s consideration of prior convictions

when determining whether an inmate is entitled to a sentence reduction under §

3621(e)(2)(B). See Crickon v. Daniels, No. 2007 WL 4554326, * 2 (D. Or. December 18,

2007). Neither § 3621(e)(2)(B) nor § 550.58 prohibit the use of an inmate’s prior

convictions that are more than ten years old to deny that inmate early release, nor has

petitioner cited to any court decisions in support of his argument. See Lee v. Eichenlaub,

No. 2007 WL 1041257, * 2 (E.D. Mich. April 5, 2007); See also Caputo v. Clark, 132 F.

3d 36 (Table); 1997 WL 774921, * 2 (7th Cir. December 12, 1997)(twenty-year old

conviction was not “too distant temporally to bar” federal inmate from eligibility for one

year sentence reduction pursuant to § 3621(e)(2)(B)). 

Petitioner lastly argues that the BOP’s refusal to consider him eligible for a one

year sentence reduction violates the provisions of The Second Chance Act of 2007; 

Pub.L. No. 110-199, 122 Stat. 657. The Second Chance Act amended 18 U.S.C. §

3624(c) to “authorize the BOP to consider placing an inmate in an RRC [residential reentry centers] for up to the final 12 months of his or her sentence, rather than the final six

months that were available pre-amendment.” See Demis v. Sniezek, 558 F. 3d 508, 513-14

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(6th Cir. 2009). However, although the Second Chance Act of 2007 modified some

portions of the Violent Crime Control and Law Enforcement Act of 1994, the relevant

statutory provision at issue here, 18 U.S.C.§ 3621(e)(2)(B), was not changed. See Moore

v. Driver, No. 2008 WL 4661478, * 3 (N.D. W.Va. October 21, 2008). Therefore, the

Court has no authority to review the BOP’s determination that Petitioner is ineligible for

obtaining a one year sentence reduction after successfully completing the RDAP program.

Id. 

A petition for a writ of habeas corpus must set forth facts that give rise to a cause

of action under federal law or it may summarily be dismissed. Perez, 157 F. Supp. 2d at

796. Because the instant petition is facially insufficient to grant habeas relief, the petition

is subject to summary dismissal. Id. 

III. ORDER

Based upon the foregoing, the Petition for a Writ of Habeas Corpus is

SUMMARILY DISMISSED WITH PREJUDICE. 

Because a certificate of appealability is not needed to appeal the denial of a habeas

petition filed under § 2241, Witham v. United States, 355 F. 3d 501, 504 (6th Cir. 2004),

Petitioner need not apply for one with this Court or with the Sixth Circuit before filing an

appeal from the denial of his habeas petition. 

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

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Dated: June 19, 2009

The undersigned certifies that a copy of this

document was served on the attorneys of record

and Rennel Pitts by electronic means or U.S. Mail

on June 19, 2009.

s/Carol A. Pinegar 

Deputy Clerk

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