United States District Court, D. New Jersey
August 23, 2005.
FRANK RIZZO, Petitioner,
FEDERAL BUREAU OF PRISONS, et al., Respondents.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Frank Rizzo, 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 pleaded guilty, in the U.S. District Court for the
Southern District of New York, to conspiracy to commit fraud and
bribery, bribery, money laundering, and tax evasion. On August
14, 2003, he was sentenced to a term of imprisonment of 41
months, to be followed by three years of supervised release. On
October 3, 2003, Petitioner self-surrendered to officials at the
Federal Correctional Institution at Fort Dix, New Jersey, where
he remains confined.
Prison officials have advised Petitioner that he has a
projected release date of September 22, 2006. He has been advised
that his pre-release preparation date, or the first date he will
be considered for pre-release transfer to a Community Corrections
Center pursuant to 18 U.S.C. § 3624(c), is June 7, 2006.
Petitioner alleges that the June 7, 2006, pre-release
preparation date is based upon a December 2002 Bureau of Prisons
policy which interprets 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, which was filed on June 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because the December 2002 policy was no longer in effect and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 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 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 or their
application to Petitioner.
For the reasons set forth above, the Petition will be dismissed
as moot. An appropriate order follows.