ROBERT B. JONES, JR., Magistrate Judge.
Petitioner, Kinjurm Allen ("Allen"), a federal inmate proceeding pro se, has filed a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [DE-I]. The matter is before the court upon respondent's motion to dismiss. [DE-13]. For the following reasons, it is recommended that respondent's motion to dismiss be allowed.
In September 2015, Allen pleaded guilty in the United States District Court for the District of Columbia to conspiring to distribute 100 grams or more of phencyclidine and 28 grams or more of cocaine base (crack). United States v. Allen, No. 1:15-CR-107-CKK-1, [DE-4] (D.D.C. Sept. 16, 2015). In his plea agreement, Allen stipulated that these drug transactions involved the carrying, possession, or use of a firearm. Id., [DE-3] at 4. Specifically, Allen stipulated that one of the drug transactions included an AR-15 assault rifle as part of the consideration. Id. He was sentenced to a term of incarceration of 87 months. Id., [DE-14]. Allen did not file a direct appeal, nor did he file any motions seeking post-conviction relief. Pet. [DE-1] at 2-6.
In February 2016, Allen requested a review to determine if he was eligible for early release under 18 U.S.C. § 3621(e). Pet'r Ex. [DE-1-1] at 4-6. BOP officials notified Allen that he was precluded from early release consideration because, inter alia, his offense involved the carrying, possession, or use of a firearm. Id.
Allen then filed the instant petition, alleging that the Federal Bureau of Prisons ("BOP") abused its discretion in denying him early release under§ 3621(e). Pet. [DE-1] at 6-7. As relief, Allen seeks an order from this court compelling the BOP to "consider [him] for early release reduction up to 12 months." Id. at 8. Allen concedes on the face of his complaint that he did not exhaust any available administrative remedies before filing this petition. Id. at 2, 6.
Allen's petition survived initial review. [DE-9]. Thereafter, respondent filed the instant motion to dismiss [DE-13], to which Allen responded [DE-21] and respondent replied [DE-22]. These matters are ripe for adjudication and have been referred to the undersigned.
Respondent filed his motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(1) provides for dismissal of an action if the court lacks subject matter jurisdiction over it. Fed.,R. Civ. P. 12(b)(1). The plaintiff bears the burden of showing federal jurisdiction on a Rule 12(b)(1) motion. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); Bio-Medical Applications ofNC, Inc. v. Elec. Data Sys. Corp., 412 F.Supp.2d 549, 551 (E.D.N.C. 2006). "The existence of subject matter jurisdiction is a threshold issue the court must address before considering the merits of the case." Johnson v. North Carolina, 905 F.Supp.2d 712, 719 (W.D.N.C. 2012) (citing Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999)).
The court's standard for review of a motion filed pursuant to Rule 12(b)(1) depends on the nature of the movant's challenge to subject matter jurisdiction. Chong Su Yi v. Soc. Sec. Admin., No. TDC-14-0370, 2015 WL 224947, at *2 (D. Md. Jan. 14, 2015) ("A defendant can challenge subject matter jurisdiction under Rule 12(b)(1) in one of two ways; he may either assert (1) a facial challenge that the allegations pied in the complaint are not to sufficient to establish subject matter jurisdiction; or (2) a factual challenge that the allegations establishing jurisdiction are not true." (citing Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009))). Ifit is argued that the complaint fails to allege sufficient facts conferring subject matter jurisdiction, all facts alleged in the complaint are assumed to be true "and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see also Kimble v. Rajpal, 566 F. App'x 261, 262 (4th Cir. 2014) (noting that where defendant raises a "facial challenge" to the jurisdictional allegations, "the court must evaluate the complaint in the same manner utilized in assessing a motion to dismiss for failure to state a claim-that is, viewing the well-pleaded facts in the complaint as true."). The court may consider any documents attached to the complaint in its analysis. Brooks-McCollum v. Aspen Prop. Mgmt. Co., 551 F. App'x 677, 679 n.* (4th Cir. Jan. 8, 2014), cert. denied, ___ U.S. ___, 134 S.Ct. 2886 (2014); see also Fed. R. Civ. P. 10(c). Alternatively, if the movant contests the accuracy of the jurisdictional allegations, the allegations of the complaint are treated as mere evidence, and the court may consider matters beyond the pleadings without converting the motion to one for summary judgment. Richmond, 945 F.2d at 768.
A motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A claim is stated ifthe complaint contains "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Jqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the [petitioner]," but does not consider "legal conclusions, elements of a cause of action, ... bare assertions devoid of further factual enhancement [,] .' . . unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, this plausibility standard requires a petitioner to articulate facts that, when accepted as true, demonstrate that the petitioner has stated a claim that makes it plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotations omitted). On a motion to dismiss, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment. See, e.g., Fed. R. Evid. 201; Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Allen's claims are deficient for a number ofreasons. First, Allen has failed to exhaust his administrative remedies. Although the exhaustion requirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997(e)(a), do not apply to a§ 2241 petition, a prisoner challenging the execution of his sentence must nevertheless exhaust administrative remedies before seeking review in federal court.
The BOP's Administrative Remedy Program ("ARP"), 28 C.F.R. § 542.10, et seq., sets out the procedure for formal review of complaints relating to any aspect of a federal inmate's confinement. See Brown, 2018 WL 1614093, at *2. Under this process, inmates are encouraged to first attempt resolution of their complaints informally by discussing the matter with BOP staff. See 28 C.F.R. § 542.13. If the attempt at informal resolution does not resolve the matter, the inmate may file a formal complaint with the Warden within twenty days of the date on which the basis of the complaint occurred. 28 C.F.R. §§ 542.13-14. If the inmate is not satisfied with the Warden's response to his formal complaint, he may appeal the response to the Regional Director. 28 C.F.R. § 542.15(a). If the inmate is dissatisfied with the regional response, he may file an appeal with General Counsel. Id. The General Counsel appeal is the final level of administrative review in the BOP's administrative remedy process. Id.
Here, Allen concedes on the face of his complaint that he did not exhaust his administrative remedies. Allen has not established that exhaustion would be futile, that the ARP is inadequate to prevent irreparable harm, or any other factor sufficient to justify waiver of exhaustion.
Accordingly, his claims should be dismissed for failure to exhaust. Alternatively, Allen's claims should be dismissed because the BOP's determinations under § 3621(e) are generally not subject to judicial review. Specifically, § 3621(e) states, in pertinent part: "the Bureau of Prisons shall, subject to the availability of appropriations, provide residential substance abuse treatment . . . . 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)(1), (2)(B). The Supreme Court has held that under § 3621 (e), the decision to grant early release, and to establish eligibility criteria for early release, lies within the discretion of the BOP. See Lopez v. Davis, 531 U.S. 230, 240 (2001). Similarly, the Administrative Procedures Act, 5 U.S.C. §§ 701-706 ("APA"), specifically denies courts the authority to review the BOP's decisions under 18 U.S.C. § 3621. See Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (holding that 18 U.S.C. § 3625 precludes judicial review of "any determination" by the BOP made pursuant to 18 U.S.C. §§ 3621-3625). Thus, the BOP's discretionary decision with respect to whether petitioner is eligible for a sentence reduction pursuant to § 3621(e)(2)(B) is not reviewable by this court. United States v. Horton, No. 2:12-CR-7-BO-1, 2017 WL 3204479, at *2 (E.D.N.C. July 27, 2017); see also Isac v. Tripp, No. 5:15-HC-2309-FL, 2016 WL 7335604, at *2 (E.D.N.C. Dec. 16, 2016) ("[T]he [APA] . . . specifically denies courts the authority to review the BOP's decisions under 18 U.S.C. § 3621").
Furthermore, even if Allen's claims were exhausted and reviewable by this court, they would fail on the merits. Here, the BOP determined that Allen was precluded from receiving § 3621 early release because his federal conviction involved the carrying, possession, or use of a firearm. Pet'r. Ex. [DE-1-1] at 4-6. Federal regulations preclude an inmate from receiving early release if that inmate has a current felony conviction for:
28 C.F.R. § 550.55(b)(5)(ii)-(iii). Accordingly, the BOP's determination that Allen was not eligible for early release was correct. See Elledge v. Berkebile, No. CIV.A. 5:10-0388, 2011 WL 1261195, at *4 (S.D.W. Va. Feb. 16, 2011) (recommending dismissal of § 2241 petition challenging the BOP's interpretation of§ 3621(e)), report and recommendation adopted, 2011 WL 1255538 (Apr. 1, 2011).
For these reasons, Allen's petition should be dismissed. Furthermore, after reviewing the claims presented in the habeas petition in light of the applicable standard, the court determines that reasonable jurists would not find the court's treatment of any of Allen's claims debatable or wrong, and none of the issues are adequate to deserve encouragement to proceed further. Accordingly, the undersigned recommends that the court deny a certificate of appealability. See 28 U.S.C. §2253(c).
Based on the foregoing, the undersigned recommends that the district court grant respondent's motion to dismiss [DE-13] and dismiss Allen's petition, and deny a certificate of appealability.
IT IS DIRECTED that a copy of this Memorandum artd Recommendation be served on each of the parties or, ifrepresented, their counsel. Petitioner shall have
