United States District Court, D. New Jersey
August 9, 2005.
ROBERT BERRETTA, Petitioner,
FEDERAL BUREAU OF PRISONS, et al., Respondents.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Robert Berretta, a prisoner currently confined at
the Federal Correctional Institution at Fort Dix, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241.*fn1 I. BACKGROUND
Petitioner asserts that on January 8, 2003, he pleaded guilty
to one county of money laundering in the United States District
Court for the Southern District of New York. On April 18, 2003,
Petitioner was sentenced to a term of imprisonment of 37 months,
to be followed by a term of supervised release of three years. On
July 7, 2003, Petitioner self-surrendered to the Federal
Correctional Institution at Fort Dix, where he remains.
On January 27, 2004, the Administrative Staff at FCI-Fort Dix
provided Petitioner with a "Sentence Monitoring Computation Data
Form" which provided for a statutory release date of March 13,
2006. The Sentence Monitoring Computation Data Form also provides
for a "Six-Month/10% Date," which is blank on the form provided
to Petitioner. Finally, the form also includes a "Pre-Release
Preparation Date," which is December 6, 2005, and which he has
been informed by his Unit Team is his "Six-Month/10% Date," or
the date when he will be considered for pre-release transfer to a
Community Corrections Center.
Petitioner alleges that the December 6, 2005, Pre-Release
Preparation Date is based upon a December 13, 2002, Memorandum
Opinion, and a December 20, 2002, Memorandum to implement the
Memorandum Opinion, which interpret governing statutes to
prohibit placement in a Community Corrections Center before the
last ten-percent of a prisoner's term of imprisonment, not to exceed six months. See 18 U.S.C. §§ 3621(b) and 3624(c).
Petitioner contends that the Bureau of Prisons' interpretation of
the governing statutes is incorrect and that he is entitled to be
considered for pre-release transfer to a CCC pursuant to the
BOP's previous policy, which would have permitted consideration
for pre-release transfer up to six months before the anticipated
Respondents answered the Petition, asserting that Petitioner's
claim was not ripe and defending the December 2002 policy on the
During the pendency of this action, however, the Bureau of
Prisons issued new regulations regarding community confinement,
including pre-release transfer to a CCC, which became effective
on February 14, 2005. See 28 C.F.R. §§ 570.20, 570.21, 70
Fed.Reg. 1659, 1663 (Jan. 10, 2005). Accordingly, this Court
granted Petitioner leave to file a supplemental brief explaining
the effect, if any, of the new regulations on the claims asserted
in his Petition, and granting Respondents leave to file a reply
to any such supplemental brief.
The time for response has lapsed, and Petitioner has failed to
file a supplemental brief. Accordingly, this matter is ripe for
determination. II. ANALYSIS
As noted above, this Court has directed Petitioner's attention
to the new regulations, providing him with a copy of the same,
and has granted Petitioner the opportunity to provide the Court
with a supplemental brief explaining the effect, if any, of the
new regulations on the claims asserted in the Petition.
Petitioner has failed to file such a supplemental brief.
This Court has previously held that the BOP December 2002
policy is invalid. See Miranda v. Miner, 04-cv-2590 (JBS). It
is apparent, however, that the December 2002 policy will not
govern the pre-release planning for Petitioner, who was
incarcerated on February 14, 2005, the effective date of the new
BOP regulations. See 70 Fed.Reg. 1659 (Jan. 10, 2005).
As Petitioner challenges only a policy that is no longer in
effect, and does not challenge the policy that will govern his
pre-release planning, Petitioner's claims are moot and the
Petition must be dismissed.
This Court expresses no opinion on the validity of the new
regulations at 28 C.F.R. §§ 570.20 and 570.21. IV. CONCLUSION
For the reasons set forth above, the Petition will be dismissed
as moot. An appropriate order follows.