Don Wilborn v. Andrew Mansukhani ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-7072
DON MITCHELL WILBORN,
Petitioner – Appellant,
v.
ANDREW MANSUKHANI, Warden, FCI Estill,
Respondent – Appellee.
No. 17-7097
WENDEL ROBERT WARDELL, JR.,
Petitioner – Appellant,
v.
ANDREW MANSUKHANI, Warden, FCI Estill,
Respondent – Appellee.
Appeals from the United States District Court for the District of South Carolina, at Rock
Hill. David C. Norton, District Judge. (0:16-cv-01134-DCN; 0:16-cv-01135-DCN-PJG)
Argued: September 20, 2019 Decided: November 8, 2019
Before AGEE, FLOYD and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Agustin Martinez, Melissa Malone, WAKE FOREST UNIVERSITY
SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellants. Jeffrey E. Sandberg,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: John J. Korzen, Ashley E. Bouchez, Third-Year Law Student, William B.
Reingold, Third-Year Law Student, W. Cole Shannon, Third-Year Law Student, Appellate
Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem,
North Carolina, for Appellants. Joseph H. Hunt, Assistant Attorney General, Barbara L.
Herwig, Patrick G. Nemeroff, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Two federal prisoners, Don Mitchell Wilborn and W. Robert Wardell, Jr.,
(collectively “the Inmates”) filed 28 U.S.C. § 2241 petitions asserting that several Bureau
of Prison (“BOP”) Program Statements are unconstitutionally vague because they define
“crime of violence” in a manner substantially similar to definitions that the Supreme Court
held were unconstitutionally vague in Johnson v. United States, 135 U.S. 2551 (2015), and
Sessions v. Dimaya, 138 S. Ct. 1204 (2018). For the reasons set out below, we affirm the
district court’s judgment dismissing the § 2241 petitions.
I.
A.
Before delving into the facts and substantive law, we first address how the parties’
representations during oral argument narrowed considerably what we must decide in this
appeal. Specifically, in his response brief on appeal, the Warden 1 argued that the Inmates
lacked standing for various factual reasons, most of which they conceded at oral argument
to be true. Those representations lead us to conclude that we lack jurisdiction to consider
most of the substantive claims originally raised in the § 2241 petitions.
1
“[T]he proper respondent to a habeas petition is ‘the person who has custody over
[the petitioner].’” Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (second alteration in
original) (quoting 28 U.S.C. § 2242). At the time they filed their petitions, Wardell and
Wilborn were serving their sentences at Federal Correctional Institution Estill, where
Respondent Andrew Mansukhani serves as Warden.
3
By way of background, one component of the Court’s jurisdiction is the doctrine of
standing, which helps “identify those disputes which are appropriately resolved through
the judicial process, and thus meet the requirements of Article III,” “which limits judicial
authority to ‘Cases’ and ‘Controversies.’” Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir.
2009). 2 The constitutional component of standing requires that plaintiffs meet three
requirements:
(1) the party has suffered an injury in fact that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to the challenged action of the defendant; and (3)
it is likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.
Id. 3
The Inmates’ § 2241 petitions challenged the constitutionality of definitions of
violent crimes found in three BOP Program Statements (“PS”): PS 5110.17, which requires
the BOP to notify state authorities when certain inmates are to be released from a BOP
facility; PS 5162.05, which provides that certain inmates who have successfully completed
a residential drug abuse treatment program may have their sentence reduced by up to a
2
We have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
3
Although neither the district court nor the parties addressed standing, because
standing implicates our jurisdiction, “it may be raised and addressed for the first time on
appeal.” Hodges v. Abraham, 300 F.3d 432, 443 (4th Cir. 2002).
Further, we note that the magistrate judge acted sua sponte in recommending that
the district court dismiss the § 2241 petitions, and the district court adopted that
recommendation and entered its order dismissing suit without the Warden filing any
response or making any substantive argument.
4
year; and PS 5100.08, which provides the BOP’s policy and procedure for classifying an
inmate’s security level for purposes of determining where they will be housed.
Neither of the Inmates has standing to challenge the definition of “crime of
violence” contained in PS 5110.17, the notification-of-release program statement. As their
counsel acknowledged at oral argument, the Inmates are both currently serving sentences
for offenses that are subject to the notification-of-release based on criteria unrelated to the
challenged part of the definition of a “crime of violence.” Specifically, Wilborn is serving
a federal sentence for conspiracy to distribute and to possess with intent to distribute 50
grams or more of methamphetamine, and thus is subject to the notification requirements
because he was convicted of a “drug trafficking crime, as that term is defined in [18 U.S.C.
§] 924(c)(3)[.]” 18 U.S.C. § 4042(b)(3)(A); see BOP PS 5110.17. For his part, Wardell is
serving a federal sentence for witness intimidation, and thus was determined to be subject
to the notification requirements because he was convicted of a felony that “has as an
element the use, attempted use, or threatened use of physical force against the person or
property of another[.]” 18 U.S.C. § 924(c)(3); 18 U.S.C. § 4042(b)(3)(B); see BOP PS
5110.17; see also United States v. Allred, No. 18-6843, slip op. at 18–20, (4th Cir. Nov. 7,
2019) (discussing why witness retaliation qualifies as a predicate conviction under the
Armed Career Criminal Act’s force clause). In other words, even if their vagueness
challenge to the definition of “crime of violence” used in PS 5110.17 were sustained, the
Inmates would still be validly subject to the notification-of-release requirements.
Therefore, having suffered no injury as a result of the allegedly vague part of the definition
contained in PS 5110.17, the Inmates lack standing to challenge it.
5
In addition, the Inmates lack standing to challenge the definition of “crime of
violence” contained in PS 5162.05, early release program statement. Specifically, the BOP
advised Wilborn that he is eligible to participate in the drug treatment program and, upon
completion, may be eligible for early release. Therefore, the BOP has not concluded that
Wilborn has a conviction for a “crime of violence” as that term is defined in PS 5162.05
such that he can demonstrate an injury causally related to the challenged language. In turn,
Wardell lacks standing because he is scheduled to be released from BOP incarceration in
November 2019, so he would be unable to participate in the prerequisite one-year
residential drug treatment program even if the BOP determined he was eligible for early
release upon completing it. He, too, cannot show an injury caused by the BOP’s use of an
allegedly unconstitutional definition of crime of violence that would be redressable by a
favorable decision in this proceeding. Hence, the Inmates lack standing to challenge the
definition used in PS 5162.05 as part of the BOP’s early release determinations.
Lastly, Wardell lacks standing to challenge the definition of “history of violence”
contained in PS 5100.08, the housing classification program statement. An inmate’s
security level plays a role in determining his place of imprisonment and in assessing his
security level as the BOP assigns a “history of violence” score based on having certain past
violent convictions. But when it assessed where to house Wardell, the BOP did not assign
him any points for having a history of violence. Thus, because the challenged definition
was not a basis for determining his placement, Wardell cannot assert an injury arising from
the allegedly unconstitutional language in PS 5100.08. As such, he lacks standing to
challenge it.
6
The above circumstances, which the Inmates acknowledged at oral argument,
considerably altered the nature of this appeal. Significantly, no claims remain with respect
to Wardell. We therefore affirm the district court’s decision to dismiss his § 2241 petition.
Only one argument remains as to Wilborn: whether PS 5100.08’s definition for calculating
an inmate’s “history of violence” is unconstitutionally vague under Johnson and Dimaya. 4
We limit our discussion of the relevant facts and law to this one issue as it relates to
Wilborn.
B.
One of the BOP’s congressionally mandated responsibilities is to determine where
inmates are housed. 18 U.S.C. § 3621; 28 C.F.R. § 524.11. While the BOP’s broad
authority and overarching duties are set out in statute, greater detail about that process is
4
The Warden contends the Court should not consider this claim because Wilborn’s
§ 2241 petition did not sufficiently allege an injury arising from his classification to a
medium security facility and because his Opening Brief did not mention PS 5100.08 by
name, nor did it specifically grapple with any of its allegedly problematic language.
However, on balance and in context, Wilborn has sufficiently raised the issue to
avoid any claim of waiver. To begin, Wilborn’s § 2241 petition identified PS 5100.08 and
alleged it was “unconstitutionally vague and violative of due process,” J.A. 17, because it
contained “the same features that rendered [the Armed Career Criminal Act’s] residual
clause unconstitutionally vague” in Johnson, J.A. 27. Wilborn’s argument repeatedly
discussed Program Statement 5100.08 as part of his claim. See J.A. 27–42. And in his
Opening Brief, Wilborn disputed the district court’s determination that he could not
“challenge [his] custody classifications via a section 2241 habeas corpus petition and that
BOP program statements using ‘crime of violence’ definitions are unconstitutionally
vague.” Opening Br. 8. While the Brief did not refer to PS 5100.08, the issue of its
validity—as well as the cognizability of a challenge to its phrasing in a § 2241 petition—
were put before the Court. See Opening Br. 8–32. This is sufficient to preserve the
argument for appeal. See Fed. R. App. P. 28(a)(8)(A) (requiring argument section of an
appellant’s opening brief to contain his “contentions and the reasons for them”); see also
In re Under Seal, 749 F.3d 276, 287 (4th Cir. 2014) (“Arguments raised in a trial court
must be specific and in line with those raised on appeal.”).
7
provided by agency regulations and Program Statements. BOP Program Statements are the
internal rules and guidance adopted to describe and implement certain policies and
procedures established by statute or regulation.
BOP PS 5100.08 builds on 18 U.S.C. § 3621(b)’s instruction that the BOP decides
where inmates are housed. It acknowledges § 3621’s direction to consider various factors,
including “the nature and circumstances of the offense” and “the history and characteristics
of the prisoner” when deciding where to house inmates. 18 U.S.C. § 3621(b). To implement
that directive, BOP PS 5100.08 notes the BOP’s goal of placing “each inmate in the most
appropriate security level institution that also meets their program needs and is consistent
with the [BOP’s] mission to protect society.” Response Br. Add. 7.
Within the BOP, there are five security levels, and inmates are initially classified
according to how many points they’ve received, though “[a]n inmate’s security point score
is not the only factor used in determining a commensurate security level for an inmate.”
Response Br. Add. 10. One factor relevant to both the initial point assessment and ultimate
security-level determination is each inmate’s history of violence, as reflected by their past
convictions. BOP PS 5100.08 defines a “serious history of violence” as “[a]ggressive or
intimidating behavior which is likely to cause serious bodily harm or death (e.g.,
aggravated assault, domestic violence, intimidation involving a weapon, incidents
involving arson or explosives, rape, etc.).” Response Br. Add. 17.
8
C.
Wilborn is currently serving a 240-month sentence for conspiracy to distribute and
possess with intent to distribute 50 grams or more of methamphetamine. He was sentenced
in 2012, before the Supreme Court decided Johnson.
Thereafter, Wilborn filed a § 2241 petition in the U.S. District Court for the District
of South Carolina 5 alleging that BOP PS 5100.08 defined history of violence in a manner
that is unconstitutionally vague in light of Johnson. He sought an injunction barring the
BOP from relying on this definition and an order requiring that he be reclassified without
reliance on it.
The magistrate judge sua sponte issued a report recommending that the district court
dismiss the petition after concluding that the challenge was not cognizable in a § 2241
petition “because, even if successful, it will be of no effect on the fact or duration of
[Wilborn’s] confinement.” J.A. 58. While the magistrate judge acknowledged that PS
5100.08 “theoretically could affect what type of facility [he] is housed in,” it observed that
Wilborn did not “argue[] that his current place of confinement is unconstitutional,”
“request that he be transferred to a different facility,” or contend that “if [Program
Statement 5100.08 were] found to be unconstitutional, that it will necessarily require that
he be transferred to a different facility.” J.A. 58–59.
5
Although Wilborn was convicted in the U.S. District Court for the Northern
District of Alabama, he is confined at Federal Correctional Institution Estill, in South
Carolina.
9
Although Wilborn filed objections to the magistrate judge’s report, the Warden did
not submit any counter-argument. Thereafter, in a brief order that did not elaborate on the
magistrate judge’s reasoning, the district court concluded—on de novo review—“that the
magistrate judge’s report accurately summarizes this case and the applicable law.” J.A. 92.
It adopted the report and recommendation and dismissed Wilborn’s § 2241 petition. 6
Wilborn noted a timely pro se appeal, and this Court has jurisdiction under 28 U.S.C.
§ 1291.
The Court appointed counsel to brief and argue the case on behalf of Wilborn,
requesting that counsel address two issues: first, is § 2241 the proper vehicle for Wilborn
to challenge the constitutionality of a BOP Program Statement used to determine where he
will be detained? And second, is BOP Program Statement 5100.08’s definition of “history
of violence” unconstitutionally vague for the reasons described in Johnson and Dimaya?
II.
A.
We review de novo the district court’s decision to dismiss Wilborn’s § 2241
petition. Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 530 (4th Cir. 2005).
6
The district court’s order indicates it did not issue a certificate of appealability.
But as a federal prisoner proceeding under § 2241, Wilborn did not have to obtain such a
certificate before being able to appeal from the court’s order. See 28 U.S.C. § 2253(c)(1).
10
B.
The Supreme Court has not definitively addressed whether a claim challenging the
petitioner’s place of confinement is cognizable in a petition for writ of habeas corpus, and
we have considered that precise issue only in unpublished decisions.
Prisoners have “two main avenues” for challenging their incarceration: petitions for
habeas corpus and civil rights claims. Hill v. McDonough, 547 U.S. 573, 579 (2006). 7 In
Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme Court explained why a prisoner’s
challenge to a state correctional division’s calculation of good-conduct time was
cognizable only in habeas (there, under 28 U.S.C. § 2254) and could not be brought as a
civil rights action (there, under 42 U.S.C. § 1983). The Supreme Court observed that “the
essence of habeas corpus” in both federal statute and common law “is an attack by a person
in custody upon the legality of that custody, and that the traditional function of the writ is
to secure release from illegal custody.” Id. at 484. The Court explained that habeas petitions
are traditionally brought to challenge “the very fact or duration of his physical
imprisonment, and the relief that [the petitioner] seeks is a determination that he is entitled
7
Modern habeas corpus petitions are pursued through 28 U.S.C. § 2241 (federal
prisoners) and 28 U.S.C. § 2254 (state prisoners). In addition, federal prisoners are required
to pursue the separate mechanism Congress provided for in 28 U.S.C. § 2255 to challenge
the validity of their conviction or sentence.
“Civil rights claims” can be brought under 42 U.S.C. § 1983 or Bivens. See 42
U.S.C. § 1983 (authorizing a cause of action against “[e]very person who, under color of
any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws”);
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
(recognizing a cause of action for damages against federal officers acting under color of
federal authority when the officer violates a plaintiff’s constitutional rights).
11
to immediate release or a speedier release from that imprisonment[.]” Id. at 500. In
discussing the differences between habeas and civil rights cases, however, the Supreme
Court observed that its holding did not mean
that habeas corpus may not also be available to challenge . . . prison
conditions. When a prisoner is put under additional and unconstitutional
restraints during his lawful custody, it is arguable that habeas corpus will lie
to remove the restraints making custody illegal.
But we need not in this case explore the appropriate limits of habeas corpus
as an alternative remedy to a proper action under § 1983. That question is not
before us. What is involved here is the extent to which § 1983 is a permissible
alternative to the traditional remedy of habeas corpus. Upon that question,
we hold today that when a state prisoner is challenging the very fact or
duration of his physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or a speedier release
from that imprisonment, his sole federal remedy is a writ of habeas corpus.
Id. at 499–500. This caveat specifically reserved the question before us—whether a claim
that unquestionably falls outside the “core” of habeas can nonetheless be brought in a
habeas petition.
Since Preiser, a circuit split has deepened on this question. Seven of the ten circuits
that have addressed the issue in a published decision have concluded that claims
challenging the conditions of confinement cannot be brought in a habeas petition. Compare
Nettles v. Grounds, 830 F.3d 922, 933–34 (9th Cir. 2016) (adopting the view post-Preiser
that conditions-of-confinement claims, which fall outside “the core of habeas corpus,” must
be brought in a civil rights claim rather than in a habeas petition), Spencer v. Haynes, 774
F.3d 467, 469–70 (8th Cir. 2014) (same), Cardona v. Bledsoe, 681 F.3d 533, 537 (3d Cir.
2012) (same), Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998) (same), McIntosh v. U.S.
Parole Comm’n, 115 F.3d 809, 811–12 (10th Cir. 1997) (same), Graham v. Broglin, 922
12
F.2d 379, 381 (7th Cir. 1991) (same), and Martin v. Overton, 291 F.3d 710, 714 (6th Cir.
2004) (same), with Aamer v. Obama, 742 F.3d 1023, 1036 (D.C. Cir. 2014) (holding that
prisoners can challenge the form of detention under habeas), Jiminian v. Nash, 245 F.3d
144, 146–47 (2d Cir. 2001) (allowing prisoners to challenge “prison disciplinary actions,
prison transfers, type of detention and prison conditions” as “challenges [to] the execution
of a federal prisoner’s sentence” under § 2241), and Miller v. United States, 564 F.2d 103,
105 (1st Cir. 1977) (holding conditions-of-confinement claims are cognizable under §
2241).
Although we have several unpublished decisions relying on Preiser to hold that
conditions-of-confinement claims are not cognizable in habeas proceedings, we have never
addressed this issue in a published decision. See Lee v. Winston, 717 F.2d 888, 892 (4th
Cir. 1983) (“Although there may ultimately be an area of limited substantive overlap
between . . . habeas corpus and § 1983, the main thrusts of the two are obviously quite
different. The former is primarily a vehicle for attack by a confined person on the legality
of his custody and the traditional remedial scope of the writ has been to secure absolute
release—either immediate or conditional—from that custody. Conversely, § 1983 cannot
be used to seek release from illegal physical confinement[.]”); see also Rodriguez v.
Ratledge, 715 F. App’x 261, 265–66 (4th Cir. 2017) (per curiam) (deciding conditions-of-
confinement claims not cognizable in a § 2241 petition); Braddy v. Wilson, 580 F. App’x
172, 173 (4th Cir. 2014) (per curiam) (same). We note the observation in Rodriguez that
“courts have generally held that a § 1983 suit or a Bivens action is the appropriate means
of challenging conditions of confinement, whereas § 2241 petitions are not.” 715 F. App’x
13
at 266. In light of this demarcation, we held in Rodriguez that a petitioner’s challenge to
his transfer to a maximum security facility “is not a cognizable § 2241 claim, because [it]
challenges the conditions of his confinement, not its fact or duration.” Id.
This case presents no basis to deviate from our previous holdings. Therefore, we
conclude Wilborn’s claim seeking to have the BOP reconsider where he is being housed is
one that would not fall within the scope of habeas corpus. Id.; see also Hill, 547 U.S. at
579 (“Challenges to the validity of any confinement or to particulars affecting its duration
are the province of habeas corpus. An inmate’s challenge to the circumstances of his
confinement, however, may be brought under § 1983.”); Preiser, 411 U.S. at 498(recognizing that “the heart of habeas corpus” involves challenges to “the fact or duration
of [a prisoner’s] physical confinement itself, and . . . seek[] immediate release or a speedier
release from that confinement”).
But even if we were to conclude to the contrary, it would be of no benefit to Wilborn
as his claim fails on the merits.
C.
We recognize that the cognizability question is open to some debate among the
circuit courts and that even when the Court concludes that a claim is not cognizable under
§ 2241, the Court can sua sponte consider the merits as a civil rights claim in some
circumstances. E.g., Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (per curiam)
(recognizing that courts may exercise discretion to construe a habeas petition attacking
14
conditions of confinement as a civil rights claim). 8 Assuming, but not deciding, that we
could do so in this case, we note that Wilborn’s claim would equally fail on its merits
regardless of how the claim were pursued. See generally Glaus v. Anderson, 408 F.3d 382,
388–89 (7th Cir. 2005) (discussing some factors relevant to deciding whether
recharacterization of a habeas petition into a civil rights claim is appropriate).
Wilborn’s challenge to the language in BOP PS 5100.08 fails because this sort of
internal guidance is not subject to the void-for-vagueness doctrine. In Beckles v. United
States, 137 S. Ct. 886 (2017), the Supreme Court held that a provision of the United States
Sentencing Guidelines that used language similar to the statute at issue in Johnson was not
void for vagueness because the Guidelines were not amenable to a vagueness challenge.
The Supreme Court explained: “[T]he Due Process Clause prohibits the Government from
taking away someone’s life, liberty, or property under a criminal law so vague that it fails
to give ordinary people fair notice of the conduct it punishes, or so standardless that it
invites arbitrary enforcement.” Id. at 892. But only two kinds of laws have been deemed
void for vagueness: “laws that define criminal offenses and laws that fix the permissible
sentences for criminal offenses.” Id. The Court held that “the advisory Guidelines do not
fix the permissible range of sentences. To the contrary, they merely guide the exercise of
8
In objecting to the magistrate’s report and recommendation in the district court,
Wilborn opposed reclassification of his claim though he did not offer any specific reasons
why doing so would burden him. Instead, he returned to his argument that his claim was
cognizable under § 2241 and generally referenced cases noting that there may be “serious
consequences for the prisoner” when cases are so recharacterized. E.g., J.A. 71–72.
15
the court’s discretion in choosing an appropriate sentence within the statutory range,” id.,
and, consequently, are constitutionally valid.
Like the Sentencing Guidelines at issue in Beckles, BOP PS 5100.08 does not
“define criminal offenses” or “fix the permissible sentences for criminal offenses.”
Therefore, it too is not susceptible to a vagueness challenge.
Before turning specifically to PS 5100.08, we first observe that the nature of BOP
Program Statements generally shields them from vagueness challenge under the Beckles
standard. This is because BOP Program Statements are “an internal agency guideline that
has not been subjected to the rigors of notice and comment rulemaking.” Cunningham v.
Scibana, 259 F.3d 303, 306 (4th Cir. 2001). Decisions made under the BOP’s authority
under § 3621—of which PS 5100.08 is one—cannot be challenged under the
Administrative Procedure Act. See 18 U.S.C. § 3625. BOP Program Statements cannot
create a crime or impose a sentence; they come into play long after a conviction and
sentence have been fixed, constraining only the BOP operations.
In turn, PS 5100.08 instructs how inmates are to be classified for purposes of
determining “the most appropriate security level institution that also meets their program
needs and is consistent with the [BOP’s] mission to protect society.” Response Br. Add. 7.
Nothing in PS 5100.08 defines a crime or fixes a punishment—its sole purpose is to provide
internal directives on how to carry out the BOP’s obligation under § 3621(b) to determine
where to house inmates based on a variety of statutory and additional criteria. That purpose
demonstrates that PS 5100.08 is not susceptible to a vagueness challenge.
16
Based on the foregoing, however Wilborn’s claim is characterized, it fails on the
merits under Beckles because he cannot challenge the BOP Program Statement as being
void for vagueness.
III.
For the reasons set out above, the judgments of the district court dismissing Wilborn
and Wardell’s § 2241 petitions are
AFFIRMED.
17