United States District Court, D. Colorado
ORDER ON APPLICATION FOR A WRIT OF HABEAS
Michael E. Hegarty United States Magistrate Judge.
Clay Douglas Siemsen, has filed an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1),
and a Memorandum in Support (ECF No. 3), challenging a
decision by the United States Bureau of Prisons (BOP) denying
him eligibility for early release. Respondent has filed a
Response to Order to Show Cause (ECF No. 25) addressing the
merits of the claims raised in the Application and Applicant
has filed a Reply (ECF No. 28). The parties have consented to
determination of this case by a United States Magistrate
Judge, pursuant to 28 U.S.C. § 636(c). (ECF No 20). For
the reasons discussed below, the Application is DENIED.
1990, Applicant was convicted of four counts of distributing
methamphetamine in District of Montana Case No.
CR90-4-BLJ-JFB-JMB. (Declaration of Robert A. Martinez, ECF
No. 25-1, at ¶ 9; ECF No. 25-2 at 23). See also
United States v. Siemsen, 107 F.3d 18 (9th Cir. 1997).
He was sentenced to an aggregate 160-month term of
imprisonment to be followed by five years of supervised
release on three of the four counts. (Id.).
Applicant's projected statutory release date via good
conduct time was October 10, 2001. (Martinez Decl., at ¶
9). Applicant completed the BOP's Residential Drug Abuse
Program (RDAP) in October 1999 and was released from custody
in October 2000, pursuant to 18 U.S.C. § 3621(e).
(Id.; see also ECF No. 25-1, attach. 1).
September 14, 2017, Applicant was convicted pursuant to his
guilty plea of possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841, in
District of Montana Case No. CR-15-138-BLG-SPW-1. (Martinez
Decl., at ¶ 10; ECF No. 25-2, attach. 4). See also
U.S. v. Siemsen, No. 15-CR-00138-BLG-SPW, 2017 WL
6997001, at *1 (D. Mont. Sept. 15, 2017). He was sentenced to
72-month term of imprisonment, to be followed by four years
of supervised release. (Id.). Applicant's
projected statutory release date via good conduct time
credits is December 23, 2022. (Martinez Decl., at ¶ 10;
ECF No. 25-1, attach. 1).
March 14, 2018, a Drug Abuse Program Coordinator interviewed
Applicant to assess whether he should participate in the
RDAP. (ECF No. 1-1 at 2, 8). Applicant was informed during
this interview that if he successfully completed the program
he would not be eligible for early release pursuant to 28
C.F.R. § 550.55(b)(7) and BOP Program Statement 5331.02.
(Id. at 2, 8, 13). However, Applicant's
ineligibility for early release does not preclude him from
participating in the RDAP. (Id. at 13).
November 5, 2018, Applicant filed a § 2241 Application
in which he claims that the federal regulation prohibiting
prisoners from earning more than one sentence reduction for
successfully completing the RDAP is arbitrary and capricious.
(ECF No. 1 at 2; No. 3 at 1). Applicant asks the Court to
invalidate 28 C.F.R. § 550.55(b)(7), or, in the
alternative, “direct the BOP to consider his particular
facts, and allow him the opportunity to earn a second
sentence reduction.” (ECF No. 3 at 17).
filed a Preliminary Response to the Application stating that
Respondent did not intend to raise the affirmative defense of
failure to exhaust administrative remedies. (ECF No.
The merits of the claims raised in the Application have been
fully briefed by the parties and are ripe for determination.
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 “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.”
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973);
see also McIntosh v. United States Parole
Comm'n, 115 F.3d 809, 811 (10th Cir. 1997). A
federal prisoner's challenge to the BOP's decision to
deny early release upon the prisoner's successful
completion of the RDAP is properly raised in a 2241
application. See, e.g., Wilson v.
Kastner, No. 09-6060, 385 Fed.Appx. 855, 856 n.2 (10th
Cir. 2010) (noting that a petition challenging RDAP
eligibility determination is appropriately brought under
§ 2241 “because [the] challenge relates to the
execution of [a] sentence rather than the validity of [the]
Court must construe Applicant's filings liberally because
he is not represented by an attorney. Trackwell v. United
States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted); see also Haines v. Kerner, 404 U.S. 519,
520B21 (1972). However, a pro se litigant's
“conclusory allegations without supporting factual
averments are insufficient to state a claim on which relief
can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). An applicant's pro se status does
not entitle him to an application of different rules. See
Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
Statutory and Regulatory Framework
RDAP is a program implemented by the BOP pursuant to 18
U.S.C. § 3621(e)(1), which directs the BOP to provide
substance abuse treatment for inmates with substance abuse
problems. Upon successful completion of the RDAP, the BOP may
reduce the sentence of a ...