Case: 19-50436        Document: 00515531401             Page: 1      Date Filed: 08/18/2020




             United States Court of Appeals
                  for the Fifth Circuit
                                                                                United States Court of Appeals
                                                                                         Fifth Circuit

                                                                                       FILED
                                                                                 August 18, 2020
                                     No. 19-50436                                 Lyle W. Cayce
                                                                                       Clerk

 Billy R. Melot,

                                                                Petitioner—Appellant,

                                          versus

 Warden Thomas E. Bergami,

                                                                Respondent—Appellee.


                  Appeal from the United States District Court
                       for the Western District of Texas
                            USDC No. 3:19-CV-104


 Before Davis, Jones, and Willett, Circuit Judges.
 W. Eugene Davis, Circuit Judge:
         Billy R. Melot, a federal prisoner proceeding pro se, appeals the
 district court’s judgment summarily denying his 28 U.S.C. § 2241 petition
 for a writ of habeas corpus. Melot asserts that he was improperly denied
 release to home confinement under the First Step Act’s pilot program for
 eligible elderly offenders, known as the Elderly Offender Home Detention
 Program. 1 The district court determined that Melot is ineligible for the


         1
           See 34 U.S.C. § 60541(g) (authorizing Attorney General to conduct pilot program
 during fiscal years 2019 through 2023).
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                                          No. 19-50436


 program because he was previously disciplined for attempted escape and
 because Melot failed to provide information regarding other requirements for
 eligibility under the program. Melot argues that the district court should have
 allowed him (1) to amend his petition to cure any deficiency and submit
 additional documents and (2) to proceed to show that his prior disciplinary
 hearing violated his due process rights. For the reasons set forth below, we
 AFFIRM.
                                    I. BACKGROUND
         In 2010, Melot was convicted by a jury of corruptly endeavoring to
 impede the administration of the Internal Revenue Code, willfully attempting
 to evade the payment of taxes, willfully failing to file tax returns, and making
 false statements to the Department of Agriculture. 2 After remand for
 resentencing, the district court sentenced Melot to 168 months in prison. 3
 The district court ordered Melot to pay $18,493,098.51 in restitution to the
 Internal Revenue Service and $226,526 in restitution to the Department of
 Agriculture. 4
         According to Melot’s petition, in July 2015, he “was cited for a
 violation of [Bureau of Prison (BOP)] disciplinary codes for having climbed
 an internal fence and being out of bounds when an officer ordered [him] to
 cease movement.” Melot explained that in the subsequent disciplinary
 proceeding, “[his] actions were characterized as an ‘attempted escape’ and
 [he] was sanctioned under the BOP disciplinary rules and regulations.”




         2
             United States v. Melot, 732 F.3d 1234 (10th Cir. 2013).
         3
          See United States v. Melot, 616 F. App’x 398, 399 (10th Cir. 2015). Melot’s initial
 sentence of sixty months was vacated on appeal. Melot, 732 F.3d at 1240, 1245.
         4
             Melot, 732 F.3d at 1240.




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                                   No. 19-50436


 Specifically, he lost forty-two days of good conduct time and sixty days of
 both commissary and visiting privileges.
        On January 31, 2019, Melot submitted a written request to Defendant,
 Prison Warden Thomas Bergami, for release to home confinement under the
 Elderly Offender Home Detention Program (“Program”), set forth in 34
 U.S.C. § 60541(g). Under the statute, an offender must satisfy several
 requirements in order to be eligible for the Program. Pertinent to the issues
 on appeal, one of the eligibility requirements is that the offender “has not
 escaped, or attempted to escape, from a [BOP] institution.” 5 According to
 Melot, on March 25, 2019, Defendant denied his request for early release to
 home confinement under the Program based on Melot’s internal BOP
 disciplinary proceeding in which he was sanctioned for attempted escape.
        In his petition, Melot argued that, although characterized as an
 attempted escape, his 2015 actions “were not in the nature of a true escape
 attempt” and that was why the BOP never sought additional federal charges
 against him for attempted escape but chose to proceed only with an internal
 disciplinary action which resulted in “relatively minor sanctions.” He
 asserted that Defendant and current BOP staff were unfamiliar with the July
 2015 events such that they could not “make a reasoned judgment about [the
 actions’] severity.” He further argued that the sanctions themselves and the
 BOP’s decision not to seek additional federal charges constituted “strong
 evidence” that his actions did not rise to the level contemplated by the
 statute to render him ineligible for the Program. Melot maintained that he
 met all other eligibility requirements for the Program and that other inmates
 “similarly situated” were released early under the Program. He contended




        5
            § 60541(g)(5)(A)(v).




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                                   No. 19-50436


 denial of his request for participation in the Program was a “clear violation of
 Equal Protection Rights.”
          The district court determined that Melot had “concede[d] that he was
 disciplined while incarcerated by the [BOP] for an attempted escape” and
 that consequently he did not qualify, and would never qualify, for release
 pursuant to the Program. The district court further noted that Melot did not
 provide information regarding other eligibility requirements. Specifically, he
 did not provide (1) a statement from the BOP that if released to home
 confinement, he would not be at substantial risk of engaging in criminal
 conduct and endangering others, (2) the address of his proposed home
 confinement, and (3) a guarantee that he would arrange for a landline phone
 (required for his monitoring) and for health insurance to meet his medical
 needs.
          Citing Supreme Court precedent, the district court further stated that
 Melot had no constitutional right to confinement in any particular place,
 including home confinement. Furthermore, the district court acknowledged
 that the Attorney General—and by delegation the BOP—had the exclusive
 authority and discretion to designate the place of an inmate’s confinement.
 Concluding that Melot’s imprisonment was not unconstitutional, the district
 court determined that “it plainly appear[ed]” from Melot’s petition that he
 was not entitled to § 2241 relief. The district court therefore denied Melot’s
 petition and dismissed his case with prejudice. Melot timely appealed.
                               II. DISCUSSION
          Melot argues that the district court erred by summarily denying his
 § 2241 petition without allowing him the opportunity to amend. He further
 asserts that the district court should have allowed him to proceed and show
 that his prior disciplinary proceeding for attempted escape violated his due




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                                          No. 19-50436


 process rights. Melot asserts that the district court’s judgment should be
 vacated and this matter remanded for further proceedings.
        As an initial matter, we must first determine whether Melot has
 properly brought his claim challenging the denial of his participation in the
 Program as a § 2241 habeas corpus petition. We have noted that a habeas
 petition “is the proper vehicle to seek release from custody,” while a civil
 rights suit pursuant to 42 U.S.C. § 1983 for a state prisoner or under Bivens 6
 for a federal prisoner is “the proper vehicle to attack unconstitutional
 conditions of confinement and prison procedures.” 7 The “bright-line rule”
 our court has adopted is that if a favorable determination of the prisoner’s
 claim would not automatically entitle him to accelerated release, then the
 proper vehicle is a civil rights suit.8
        The Program in which Melot seeks permission to participate is
 described in 34 U.S.C. § 60541(g) as a “pilot program” conducted by the
 Attorney General “to determine the effectiveness of removing eligible
 elderly offenders . . . from Bureau of Prisons facilities and placing such
 offenders on home detention until the expiration of the prison term to which
 the offender was sentenced.” 9 Under the plain text of the statute, the
 prisoner is “remov[ed]” from a BOP facility and placed on “home detention
 until the expiration of the prison term to which the offender was
 sentenced.” 10 The Program, thus, calls for a change in confinement from a
 prison facility to home detention. While an argument can be made that the


        6
            Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
        7
            Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997).
        8
            Id. at 820–21 (citing Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam)).
        9
            § 60541(g)(1)(A).
        10
             Id.




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 Program allows for “release” from institutional custody, we determine that
 Melot’s claim involves his conditions of confinement and is more properly
 brought as a Bivens action. 11 Even though Melot’s claim is not cognizable
 under § 2241, because Melot is proceeding pro se and because we heretofore
 have not had occasion to determine whether prisoner claims challenging the
 denial of participation in the Program should be asserted as civil rights claims,
 we liberally construe Melot’s petition as asserting a Bivens civil rights claim.12
         Also an issue of first impression is whether federal courts have any
 power to order that a prisoner be placed in the Program. Specifically, under
 § 60541(g)(1)(B), “the Attorney General may release some or all eligible elderly
 offenders . . . from [BOP] facilities to home detention, upon written request
 from either the [BOP] or an eligible elderly offender.” The statute does not
 give authority to the federal courts to place an offender in the Program; that
 authority is given to the Attorney General. Moreover, the Attorney General
 is not required to place eligible offenders in the Program, but “may release
 some or all” of them for participation in the Program. Consequently, we
 conclude that Congress has vested the executive branch, not the judicial




         11
            Although vacated as moot on rehearing, we note that our determination that
 Melot’s challenge to the denial of his request to participate in the Program is properly
 brought as a Bivens action is consistent with the Tenth Circuit’s thoughtful opinion in Boyce
 v. Ashcroft, 251 F.3d 911, 918 (10th Cir. 2001), wherein the court held that when a prisoner
 is challenging the BOP’s choice of a prisoner’s location of confinement, the proper vehicle
 to assert the challenge is a Bivens action. See also Davis v. Fetchel, 150 F.3d 486 (5th Cir.
 1998) (holding that when challenge involves duration of confinement—not condition of
 confinement—the claim sounds in habeas).
         12
            “[W]e liberally construe briefs of pro se litigants and apply less stringent
 standards to parties proceeding pro se than to parties represented by counsel.” Grant v.
 Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).




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 branch, with the power to decide which prisoners may participate in the
 Program. 13
         Our decision does not mean that the Attorney General’s or BOP’s
 determinations regarding participation in the Program are entirely insulated
 from judicial review. As noted by one of our sister circuits, if the prisoner is
 challenging the Attorney General’s or BOP’s statutory interpretation of
 § 60541(g), then judicial review may be appropriate. 14 In this matter,
 however, Melot argued in the district court that Defendant wrongly declined
 Melot’s request for participation in the Program based on a prior disciplinary
 proceeding for which Melot was sanctioned for “attempted escape.” Under
 § 60541(g)(5)(A)(v), an offender is ineligible for the Program if he has
 “escaped, or attempted to escape, from a [BOP] institution.” Melot argued
 that Defendant and current BOP staff were “not familiar enough with the
 July 2015 events to make a reasoned judgment about their severity.” Melot
 asserted that the “relatively minor” sanctions imposed and the fact that no
 federal charges were ever brought against him for his actions showed that his
 “actions were not of the nature that were intended to preclude consideration
 for elderly release.”




         13
             In so concluding, we join the Tenth Circuit, as well as numerous district courts.
 See, e.g., Marshall v. Hudson, 807 F. App’x 743, 747 (10th Cir. 2020) (holding that “federal
 courts have no power to order that an inmate be placed in the pilot program”); United
 States v. Crawford, No. 1:07CR317-1, 2019 WL 6615188, at *6 (M.D.N.C. Dec. 5,
 2019); Stark v. Rios, No. 19-cv-375, 2019 WL 2796766, at *2 (D. Minn. June 5, 2019), report
 and recommendation adopted, No. 19-cv-00375, 2019 WL 2766525 (D. Minn. July 2,
 2019); Zheng Yi Xiao v. La Tuna Fed. Corr. Inst., No. EP-19-CV-97-KC, 2019 WL 1472889,
 at *3 (W.D. Tex. Apr. 3, 2019). Our conclusion is also consistent with 18 U.S.C. § 3621,
 which gives the BOP the authority and discretion to designate the place of a convicted
 offender’s confinement.
         14
              Marshall, 807 F. App’x at 748.




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                                       No. 19-50436


         In effect, Melot contended that Defendant should not have considered
 his prior actions as an attempted escape, even though prison officials
 previously characterized them as such in a disciplinary proceeding. Melot’s
 claim, however, would have required the district court to assess Melot’s prior
 actions and make a determination whether those actions constituted an
 escape attempt. Only Defendant had authority to make that determination
 for purposes of Melot’s eligibility for the Program. The statute does not give
 federal courts the power to do so. On appeal, Melot now contends that his
 prior disciplinary proceeding violated his due process rights because it was
 “based on inaccurate information and without considering mitigating
 factors.” Melot did not raise a due process argument involving his prior
 disciplinary proceedings in the district court, and he may not raise this issue
 for the first time on appeal. 15
                                 III. CONCLUSION
         Based on the foregoing, the district court’s judgment is
 AFFIRMED.




         15
          See Wilson v. Roy, 643 F.3d 433, 435 n.1 (5th Cir. 2011); Leverette v. Louisville
 Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).




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