The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Jose Contreras-Forero, 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 February 5, 2003, he pleaded guilty
to two counts of Importation of Heroin in United States District
Court for the Eastern District of New York. On September 30,
2003, Petitioner was sentenced to a term of imprisonment of 37
months. On January 13, 2004, Petitioner began his sentence at the
Federal Correctional Institution at Fort Dix.
On February 4, 2004, the Administrative Staff at FCI-Fort Dix
provided Petitioner with a "Sentence Monitoring Computation Data
Form" which provided for a projected statutory release date of
October 13, 2006. The Sentence Monitoring Computation Data Form
also provides for a "Pre-Release" or "Six-Month/10% Date," of
July 8, 2005, the date when he will be considered eligible for
pre-release transfer to a Community Corrections Center.
Petitioner alleges that the July 8, 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, as reflected in the December 2002 policy,
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 release date.
In lieu of an Answer, Respondents sought and obtained leave to
file a Motion to Dismiss, (Docket Entry No. 5), which was filed
on April 27, 2005, and which was returnable on June 3, 2005.
Respondents asked this Court to dismiss the Petition as moot
because the December 2002 policy was no longer in effect and
because Petitioner had not challenged new regulations governing
pre-release transfer to Community Corrections Centers, which
became effective on February 14, 2005. See 28 C.F.R. §§ 570.20,
570.21, 70 Fed.Reg. 1659, 1663 (Jan. 10, 2005).
Petitioner has failed to file any opposition to Respondents'
Motion to Dismiss. Nor has he sought leave to amend the Petition
to assert a claim challenging the new regulations. Accordingly,
this matter is ripe for determination.
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.
For the reasons set forth above, the Petition will be dismissed
as moot. An ...