United States District Court, D. Colorado
ORDER OF DISMISSAL
R. Brooke Jackson United States District Judge
This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Docket No. 1), filed pro se by Applicant Arnie Porter. Respondent Warden has filed a Response to Order to Show Cause (Docket No. 11) and Applicant has filed a Reply (Docket No. 12). Having considered the same, the Court will deny the Application.
On September 24, 1997, a jury found Mr. Porter guilty of distribution of cocaine, conspiracy to distribute crack cocaine, two counts of distribution of crack cocaine, and mail fraud. United States v. Porter, No. 98-1199, 1999 WL 1116812, at *1 (10th Cir. Dec. 6, 1999). Evidence presented at trial showed that Applicant was a high-ranking member of a criminal organization known as the Gangster Disciples, through which he purchased and distributed cocaine. Id. at *2. Additionally, witnesses testified that Applicant financed the initial startup of this drug distribution network through a fraudulent insurance claim, that he had at least ten people working for him cooking and distributing crack cocaine, and that he received a portion of all the proceeds from these sales. Id.
On April 24, 1998, Applicant was sentenced to two concurrent life sentences. Id. His sentence was reduced to 360 months in June 2008, and then to 292 months in December 2011, pursuant to 18 U.S.C. § 3582(c)(2). United States v. Porter, et al., Action No. 96-cr-444-EWN (JLK) (D. Colo.) (Docket Nos. 279, 314). Mr. Porter’s current projected release date, via good conduct time, is January 17, 2008. (Decl. of Regina Hufnagle, Docket No. 11-1, at ¶ 5; attach. 1, at 9).
Mr. Porter was originally incarcerated in U.S. Penitentiary Allenwood, a high-security federal penitentiary. (Docket No. 11-2). In September 2008, he was transferred to a medium-security prison, and in May 2010, to a low-security prison. Id. Applicant has been confined at FCI-Englewood, a low security prison, since August 2013. (Id.).
The Bureau of Prisons (BOP) has designated Mr. Porter as having a Public Safety Factor (PSF) of Greatest Severity Offense. (Docket No. 11-1, at ¶ 6). A PSF consists of factual information regarding the inmate’s current offense, sentence, criminal history or institutional behavior that requires additional security measures be employed to ensure the safety and protection of the public. See BOP Program Statement (PS) 5100.08, Inmate Security Designation and Custody Classification, Chapter 5, page 7. The Greatest Severity Offense classification is assigned to “a male inmate whose current term of confinement falls into the “Greatest Severity” range according to the Offense Severity Scale (Appendix A).” Id. http://www.bop.gov/policy/progstat/5100008.pdf. Under the Offense Severity Scale, the Greatest Severity rating is assigned to a drug offender whose current offense involved the offender’s participation in an organizational network where he organized or maintained ownership interest/profits from large scale drug activity. (PS 5100.08, Appx. A, Page 1). An inmate designated with a PSF of Greatest Severity Offense must be housed “in at least a Low security level institution unless the PSF has been waived.” (Id., Chapter 5, Page 7).
On January 1, 2014, Mr. Porter submitted an Inmate Request to Staff (cop-out) seeking a waiver of his PSF. (Docket No. 11-1, at ¶8; attach. 3, at 13). Applicant’s unit manager reviewed Applicant’s PSF and advised him in writing on January 3, 2014, that his PSF of Greatest Security Offense was appropriate and he should remain at a low level facility. (Id.).
Mr. Porter’s unit team conducted a custody classification review on January 25, 2014, and determined that his PSF of Greatest Severity precluded reduction of Applicant’s classification, despite his clear conduct and active participation in programming. (Docket No. 11-1, at ¶9; attach. 4, at 15). Applicant was scheduled for another custody classification program review in January 2015. (Docket No. 11-1, at ¶ 9).
In the Application, Mr. Porter asserts that the BOP refused to take into account all of the factors listed in 18 U.S.C. § 3621(b) during the custody classification program review. Specifically, Applicant contends that the BOP failed to consider the statements made by former District Judge Nottingham at the April 2008 resentencing, as required by § 3621. (Docket No. 1, at 3). For relief, Applicant asks that Respondent be ordered to transfer him “to a minimum custody level (or a Satellite Low), ” or to reconsider him for minimum custody level assignment, based on all of the factors set forth in § 3621. (Id. at 6).
In response to an October 10, 2014 Order issued by Magistrate Judge Gordon P. Gallagher, Respondent filed a Preliminary Response to the Application on October 28, 2014, advising the Court that Respondent did not intend to raise the affirmative defense of failure to exhaust administrative remedies. (Docket No. 6). This case was thereafter drawn to the undersigned.
II. LEGAL STANDARDS
A. Habeas Corpus Actions
Habeas corpus review is available under § 2241 if an individual is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “The essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.” See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district court where the prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996).
A prisoner who challenges the fact or duration of his confinement and seeks immediate release or a shortened period of confinement must do so through an application for habeas corpus. See McIntosh v. United States Parole Common, 115 F.3d 809, 811-12 (10th Cir. 1997). In contrast, a prisoner who challenges the conditions of his confinement must pursue a civil rights action. Id. at 812; see also Sandifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir.2011) (“It is well-settled law that prisoners who wish to challenge only the conditions of their confinement ... must do so through civil rights lawsuits ... not through federal habeas proceedings.”); see also McIntosh, 115 F.3d at 811-12 (although a § 2241 attack on the execution of a sentence may challenge some matters that occur at prison, such as deprivation ...