United States District Court, D. New Jersey
August 23, 2005.
JULIO FLOREZ, Petitioner,
FEDERAL BUREAU OF PRISONS, et al., Respondents.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
Petitioner Julio Florez, 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
In 2001, Petitioner pleaded guilty to one count of conspiracy
to possess with intent to distribute cocaine, in violation of
21 U.S.C. §§ 841(b)(1)(A) and 846, in the U.S. District Court for
the Eastern District of New York. On September 6, 2001, he was
sentenced to a term of 57 months imprisonment, with five years of
supervised release to follow. Petitioner is presently confined,
pursuant to that sentence, in the Federal Correctional
Institution at Fort Dix, New Jersey.
Petitioner has been advised that his projected release date is
July 28, 2006, and his pre-release preparation date, or the first
date he would be considered for pre-release transfer to a
Community Corrections Center pursuant to 18 U.S.C. § 3624(c), is
February 28, 2006.
Petitioner contends that his pre-release preparation date was
calculated pursuant to a Bureau of Prisons' December 2002 policy,
which he characterizes as "illegal" because it conflicts with
18 U.S.C. §§ 3621(b) and 3624(c).
In lieu of an Answer, Respondents sought and obtained leave to
file a Motion to Dismiss, which was filed on March 7, 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because the December 2002 policy was no longer in effect and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 Cestaro v. DeRosa, 04-cv-0792(RBK)
(D.N.J. July 6, 2004). It is apparent, however, that the December
2002 policy will not govern the pre-release planning for
Petitioner, who was already confined 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.