Wednesday, April 14, 2010

Mora-Meraz v. Thomas, No. 09-35413 (4-14-10)(Tallman with Paez and M. Smith). Petitioner asked to be admitted into the BOP's drug abuse program. BOP said "no" because he did not meet the requirements for admission; namely, he had not used the same substance within 12 months of incarceration. He had been convicted of possession with intent, but his PSR indicated that he had not used substances within a year. He challenged the decision, arguing that BOP's requirements did not comply with the regulatory notice and comment and that it was not rational. The 9th affirmed the denial of the petition, holding that BOP's unwritten 12-month rule was not inconsistent with BOP regulations, was interpretive, and was exempt from notice and comment. The 9th also held that the requirement, based on DSM-IVR, was rational in requiring a verified documented drug abuse problem.


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