United States District Court, D. New Jersey
August 17, 2005.
JAMES CHESTON, Petitioner,
JOHN NASH, et al. Respondents.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Petitioner James Cheston, 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 Respondents filed a motion to dismiss in response. For the following reasons, Respondents' motion to
dismiss will be granted.
On September 17, 2003, Cheston was convicted after a guilty
plea and sentenced by the United States District Court, District
of New Jersey, for possession of child pornography. He received a
sentence of 27 months imprisonment and three years supervised
release. (Petition, ¶¶ 3-5).
On October 24, 2004, the administrative staff at FCI Fort Dix
informed Cheston that his projected release date is October 13,
2005, and that his "Pre Release Preparation Date" or "Six
month/10% Date", in which he would be eligible for release to a
Community Corrections Center ("CCC"), is "N/A." (Pet. Appendix,
Exhibit 1). Cheston contends that his pre-release or transitional
release date to CCC will not be determined until he is
approximately 45 days from his release date, and that he would
receive no more than five days in a CCC. He argues that this
demonstrates the BOP's strict application of the "10% date" based
on the recent policy change by the BOP, rather than the last six
months of his sentence, as was the BOP's prior, longstanding
practice. (Pet., Brief, p. 3).
Liberally construing the petition, Cheston alleges that the new
policy change reversing the BOP's practice of allowing inmates to
be eligible for CCC placement up to the last six months of their sentence, regardless of the length of the
sentence, is illegal. (Pet., ¶ 8). He also asserts that the
December 20, 2002 OLC Memorandum restricting CCC designation to
the last 10% of the prison sentence is illegal. (Pet. ¶ 9).
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).
Respondents filed a Motion to Dismiss on April 8, 2005, arguing
that because Cheston's petition is directed solely to challenging
the December 2002 policy change, which is no longer in effect due
to the new regulations, the petition is moot and should be
dismissed. Respondents state that the new regulations will be
applied to Petitioner.
Petitioner has not responded to the Motion to Dismiss.
As noted above, Petitioner has been served with the motion to
dismiss and has failed to respond to Respondents' claim that the
petition is now moot. It is also apparent 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.*fn2
For the reasons set forth above, Respondents' Motion to Dismiss
will be granted. The Petition will be dismissed as moot. An
appropriate order follows.