UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES CLIFFORD DENTON,

Petitioner,

CASE NO. 2:09-CV-13581

v. JUDGE AVERN COHN

MAGISTRATE JUDGE PAUL J. KOMIVES

C. ZYCH,

Respondent.

 /

REPORT AND RECOMMENDATION

I. RECOMMENDATION: The Court should deny petitioner’s application for the writ of

habeas corpus.

II. REPORT:

A. Procedural History

Petitioner James Clifford Denton is a federal prisoner incarcerated at the Federal

Correctional Institution in Milan, Michigan (FCI-Milan). The procedural background leading to this

action is not in dispute. On August 7, 1998, petitioner was sentenced to a term of 72 months’

imprisonment and five years’ supervised release by the United States District Court for the Western

District of Washington following his convictions for conspiracy to manufacture marijuana and

conspiracy to engage in money laundering. Petitioner was subsequently charged with escape and,

on March 22, 2004, was sentenced to an additional term of 30 months’ imprisonment and three

years’ supervised release by the United States District Court for the District of Oregon. The Bureau

of Prisons has calculated petitioner’s projected release date as November 16, 2010. While

incarcerated at FCI-Taft, petitioner was approved to participate in a Residential Drug Abuse

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Program (RDAP). On January 8, 2009, after his transfer to FCI-Milan, petitioner began the RDAP

with Cadre 52. He completed Phase 1 of the program and on April 10, 2009, began participating

in Phase 2. According to James Tabeling, Psy.D., Coordinator of the RDAP Program at FCI-Milan,

two weeks into Phase 2 the specialist running Cadre 52 indicated that petitioner had a pessimistic

attitude toward some recovery concepts and was slightly resistant to engaging in recovery. See

Gov’t’s Br., Ex. 4, Decl. of James R. Tabeling, ¶ 6 [hereinafter “Tabeling Decl.”]. Tabeling spoke

to petitioner about these issues on May 10, 2009, at which time petitioner indicated that he was

taking a passive observer role. Concluding that petitioner had not fully involved himself in the

therapeutic process, Tabeling decided to remove petitioner from Cadre 52 and give him the

opportunity to begin the RDAP anew with the next cadre. See id., ¶ 7. On May 18, 2009, Tabeling

again met with petitioner at petitioner’s request. At that time, according to Tabeling, petitioner

again indicated that he was taking the role of passive observer, and was maintaining a focus on

others’ failures rather than his own. See id., ¶ 8. Some time during the end of May, Tabeling also

discussed with petitioner whether petitioner qualified for admission to the RDAP based on the lack

of documentation substantiating a substance abuse problem. See id., ¶ 9. On June 2, 2009, Tabeling

met with petitioner and informed petitioner of his decision to remove him from the program.

Tabeling offered petitioner a non-residential treatment program, but petitioner refused. On June 8,

2009, petitioner was officially removed from the RDAP. See id. On June 10, 2009, petitioner

provided Tabeling with additional information which allowed Tabeling to locate documentation

substantiating petitioner’s substance abuse problem. Tabeling met with petitioner and informed him

that he would be readmitted to the RDAP and could start anew with Cadre 53. Petitioner initially

refused, requesting to be placed back into Cadre 52 so that he could obtain early release and

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declining to again complete Phase 1 of the program. See id., ¶ 10. Petitioner eventually agreed to

participate in the RDAP with Cadre 53, and commenced Phase 1 on June 18, 2009. See id., ¶ 11.

Tabeling characterizes petitioner’s participation to date as “less than adequate.” Id.

On July 1, 2009, petitioner filed a Request for Administrative Remedy with the Warden,

requesting to be placed back into Cadre 52. The Request was denied on July 17, 2009. See Gov’t’s

Br., Ex. 6. Petitioner then filed a Regional Administrative Remedy Appeal on July 23, 2009, which

was denied by the North Central Regional Director on August 4, 2009. See id., Ex. 7. The

Government, relying on a computer-generated Administrative Remedy Generalized Retrieval run

on October 7, 2009, asserts that petitioner did not file a further appeal with the Central Office for

Inmate Appeals. See id., Ex. 8. However, petitioner contends that he did file such an appeal, and

attaches to his reply brief a “Receipt-Administrative Remedy” dated October 21, 2009, which shows

that the Central Office received an appeal on September 3, 2009, with a response due on October

13, 2009. See Pet’r’s Reply Br., Ex. 3.

On September 10, 2009, petitioner filed this application for a writ of habeas corpus pursuant

to 28 U.S.C. § 2241. He contends that the RDAP statute gave him an expectation of early release

based on his successful participation in the RDAP, and that the BOP acted arbitrarily by not

allowing him to rejoin Cadre 52 after documentation was received which showed that he was

eligible for participation in the RDAP. The Government filed a response on October 22, 2009. The

Government argues that the petition should be dismissed based on petitioner’s failure to exhaust his

administrative remedies, and that petitioner is not entitled to relief on the substance of his claim.

The Government contends that regardless of petitioner’s eligibility in general for participation in the

RDAP, his failure to properly engage in Phase 2 supported his removal from Cadre 52, and that

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petitioner had neither a protected liberty interest nor a contractual right to complete the RDAP with

Cadre 52 and receive early release based on that participation. Petitioner filed a reply on November

4, 2009. Petitioner asserts that he did file an appeal with the Central Office, but never received a

response. With respect to the substance of his claims, petitioner contends that his removal from the

program was pretextual, because an evaluation spanning from January 12 through May 11, 2009,

shows that he had 100% attendance and his participation was rated “Good” 96.34% of the time and

“Fair” 3.66% of the time. See Pet’r’s Reply Br., Ex. 4.

B. Exhaustion

The Bureau of Prisons maintains an administrative remedy procedure for inmates to

challenge any aspect of their confinement, including the computation of their sentences. See United

States v. Wilson, 503 U.S. 329, 335 (1992); 28 C.F.R. §§ 542.10-.16. It is well established that

“[f]ederal prisoners must exhaust their administrative remedies prior to filing a habeas petition under

§ 2241.” Fazzini v. Northeast Ohio Correctional Ctr., 473 F.3d 229, 231 (6th Cir. 2006). Here,

there is a factual question as to whether petitioner has exhausted his administrative remedies.

Although the Government has provided a computer-generated report showing that no Central Office

appeal was filed, petitioner has filed a document purporting to show receipt of such an appeal by the

Central Office. Although exhaustion is a prerequisite to relief, it is not jurisdictional and a court

may deny an unexhausted § 2241 petition on the merits rather than requiring further exhaustion. See

Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). Because there is a factual dispute as to whether

petitioner has properly exhausted his administrative remedies, the Court should proceed directly to

the merits.

C. Analysis

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Pursuant to 18 U.S.C. § 3621, the BOP must provide each prisoner the opportunity to

participate in residential substance abuse treatment in his place of confinement. See 18 U.S.C. §

3621(b), (e)(1). The statute provides two incentives to prisoners who successfully complete an

RDAP. First, the Director has discretion to modify the conditions of the prisoner’s confinement.

See 18 U.S.C. § 3621(e)(2)(A). Second, and at issue here, the statute provides that certain prisoners

may be eligible for early release from their sentences. Specifically, the statute provides:

The 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.

18 U.S.C. § 3621(e)(2)(B) (emphasis added). As the use of “may” indicates, the statute leaves the

decision of whether to grant early release to the discretion of the BOP. See Lopez v. Davis, 531 U.S.

230, 241 (2001). Thus, even where a prisoner successfully completes the RDAP, the BOP retains

the discretion to deny early release. See McLean v. Crabtree, 173 F.3d 1176, 1182 (9th Cir. 1999);

Orr v. Hawk, 156 F.3d 651, 653-54 (6th Cir. 1998).

It is well established that a prisoner has no liberty interest protected by the Due Process

Clause in discretionary release prior the expiration of his term of imprisonment. See Greenholtz v.

Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979). It is likewise well established

that a prisoner has no constitutional right to participate in any prison rehabilitation programs. See

Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). The RDAP statute provides that the BOP must

provide a residential drug abuse treatment program, but does not define the contours of that program

or requirements for prisoner eligibility. The statute thus leaves these decisions to the BOP’s

discretion. In light of this fact, and in the absence of any protected liberty interest, petitioner cannot

show that he is entitled to habeas relief. As explained by another court, in language directly

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applicable here:

Petitioner’s contention that his termination from the RDAP violated his due process

rights is meritless. Petitioner has no liberty interest protected by the Due Process

Clause in a reduced sentence. Greenholtz v. Inmates of Nebraska Penal & Corr.

Complex, 442 U.S. 1 (1979)(holding “[t]here is no constitutional or inherent right of

a convicted person to be conditionally released before the expiration of a valid

sentence”). The statute itself, 18 U.S.C. § 3621(e), does not implicate a

constitutionally-protected liberty interest because it does not mandate a sentence

reduction. The notice Petitioner received stating that he was provisionally eligible

for, but not entitled to, early release was also insufficient to create a

constitutionally-protected liberty interest. See Royal v. Scibana, No. 08-6069, 2009

WL 247834 (10th Cir. Feb.3, 2009)(“Just as a prisoner does not possess a

constitutional right to a reduction of a valid sentence, ..., a prisoner does not possess

a constitutional right to retain provisional eligibility for the reduction of a valid

sentence.”)(omitting citation)(emphasis in original).

Congress mandated in § 3621 that only inmates who successfully completed

the RDAP could be considered for “early release” from confinement. Congress did

not define the term “successfully,” thereby leaving its interpretation to the agency.

“In this familiar situation, where Congress has enacted a law that does not answer

‘the precise question at issue,’ all [a reviewing court] must decide is whether the

Bureau, the agency empowered to administer the early release program, has filled the

statutory gap ‘in a way that is reasonable in light of the legislature's revealed

design.’” Lopez, 531 U.S. at 242 (quoting NationsBank of N.C., N.A. v. Variable

Annuity Life Ins. Co., 513 U.S. 251, 257 (1995)).

Petitioner contends that because he did not commit an offense that qualified

under 28 U.S.C. § 550.53(g)(3) for his immediate removal from the RDAP he could

not be removed from the program. Petitioner’s contention ignores 28 U.S.C. §

550.53(g)(1) and (2), which provide for the discretionary removal of inmates from

the RDAP, generally after a warning, for lack of compliance with the treatment

program’s behavioral rules and program requirements. When Petitioner was admitted

to the RDAP, he signed a contract stating he understood “that a determination of

early release for me is provisional, may change, and depends on continued positive

behavior and successful participation in all components of the program, including

community transitional services.”

“An agency’s interpretation of a statute by formal regulation or adjudication

is entitled to deference, so long as the agency’s interpretation is based upon a

permissible construction of the statute.” Hunnicut v. Hawk, 229 F.3d 997, 1000 (10th

Cir.2000)(quotation and citation omitted). The BOP has reasonably interpreted 18

U.S.C. § 3621(e)’s requirement of “successful” completion of an RDAP to require

that inmates follow the program’s rules, exhibit positive behavior, and successfully

complete all three phases of the RDAP before they receive § 3621(e)’s “early

release” sentence reduction. The RDAP Coordinator acted well within his discretion

in determining that Petitioner should be expelled from the RDAP due to his repeated

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I note that the “arbitrary and capricious” standard of review ordinarily applicable to decisions

of administrative agencies under the Administrative Procedures Act (APA) is not implicated, as

decisions applying § 3621 are explicitly excepted from coverage under the APA. See 18 U.S.C. § 3625.

In any event, petitioner cannot show that the decision to remove him from the RDAP was an abuse of

discretion. The prison officials involved in administering the program determined, based on petitioner’s

own statements to them, that petitioner was not sincere in the rehabilitative process but was

participating in the RDAP only to obtain early release and to gather information to help in his plan to

establish a drug abuse treatment business after his release from prison. 

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misconduct offenses, which continued after he was repeatedly warned that he needed

to improve his conduct. Thus, Petitioner is not entitled to habeas relief with respect

to his due process claim.

Reyes v. Ledezma, No. CIV-09-88-M, 2009 WL 1362602, at *5 (W.D. Okla. May 14, 2009); see

also, Ayala v. Phillips, No. 5:07CV45, 2008 WL 450478, at *3 (N.D. W. Va. Feb. 19, 2009)

(decision to remove prisoner from RDAP “falls squarely within the BOP’s discretion and is not

subject to judicial review.”).

Here, BOP officials administering the RDAP determined that petitioner was not sincerely

completing the requirements of the program because he had taken a passive observer role and had

not actively engaged in the rehabilitative process. This was a decision which was uniquely within

the expertise of the prison officials administering the program. And, by virtue of Congress’s silence

on the matter in enacting § 3621, it was a decision committed to the BOP’s discretion.1

 Thus,

petitioner cannot show that he was denied an right to which he was entitled by the Constitution or

by statute, and the BOP’s exercise of its discretion does not provide a basis for habeas relief.

D. Conclusion

In view of the foregoing, the Court should deny petitioner’s application for the writ of habeas

corpus.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

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but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED.

R.CIV.P.72(b). Failure to file specific objections constitutes a waiver of any further right of appeal.

See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d

505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections

which raise some issues but fail to raise others with specificity, will not preserve all the objections

a party might have to this Report and Recommendation. See Willis v. Secretary of Health & Human

Servs., 931 F.2d 390, 401 (6th Cir. 1991). Smith v. Detroit Federation of Teachers Local 231, 829

F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections

is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: 1/21/10

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record by

electronic means or U.S. Mail on January 21, 2010.

s/Eddrey Butts 

Case Manager

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