United States District Court, D. New Jersey
August 23, 2005.
PAUL G. EINSTMAN, Petitioner,
FEDERAL BUREAU OF PRISONS, et al., Respondents.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Petitioner Paul G. Einstman, 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 The Respondents are the Federal Bureau of
Prisons, Harley Lappin, and Warden John Nash. Because it appears from a review of the Petition that
Petitioner is not entitled to issuance of the writ, this Court
will dismiss the Petition. See 28 U.S.C. § 2243.
Petitioner was sentenced on July 14, 2004, to a term of
imprisonment of 18 months, pursuant to which he is currently
confined. Petitioner's projected release date is February 5,
2006. Petitioner has not been advised of his Pre-Release
Petitioner contends that the Bureau of Prisons' December 2002
policy governing pre-release transfer to Community Corrections
Centers is "illegal." Petitioner requests that the Court order
Respondents to immediately consider him for up to six months
pre-release placement in a CCC.
Petitioner contends that exhaustion of administrative remedies
would be futile.
II. STANDARDS FOR A SUA SPONTE DISMISSAL
United States Code Title 28, Section 2243 provides in relevant
part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto. A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972). A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis
v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970). Nevertheless, a federal
district court can dismiss a habeas corpus petition if it appears
from the face of the petition that the petitioner is not entitled
to relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996);
Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied,
490 U.S. 1025 (1989). See also 28 U.S.C. §§ 2243, 2255.
This Court has subject matter jurisdiction over this matter
pursuant to 28 U.S.C. § 2241(a) and (c) in that Petitioner
challenges his custody, in this district, under the authority of
the United States and in violation of the laws of the United
States. See United States v. Ferri, 686 F.2d 147, 158 (3d
Cir. 1982), cert. denied, 459 U.S. 1211 (1983) (claims
attacking the execution of a petitioner's sentence are properly
brought under 28 U.S.C. § 2241). See also Kingsley v. Bureau
of Prisons, 937 F.2d 26, 30 (2d Cir. 1991) ("challenges to the length,
appropriateness or conditions of confinement are properly brought
under 28 U.S.C. § 2241").
Indeed, "Section 2241 of title 28 has long been recognized as
the basis for challenging the execution of the sentence of a
person in federal custody or a person sentenced for violating a
federal criminal statute." Zucker v. Menifee, 2004 WL 102779,
*3 (S.D.N.Y. January 21, 2004) (citing Maleng v. Cook,
490 U.S. 488, 493 (1989) (per curiam)). Additionally, this Court has the
authority to compel the BOP to exercise its authority to select
and designate a place for service of sentence. See McCarthy v.
Doe, 146 F.3d 118 (2d Cir. 1998). Habeas corpus relief under
28 U.S.C. § 2241 is available to effectuate this authority to the
extent that the prisoner is in any form of "custody" in this
district. See Hensley v. Municipal Court, 411 U.S. 345
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, a federal prisoner ordinarily may not bring a
petition for writ of habeas corpus under 28 U.S.C. § 2241,
challenging the execution of his sentence, until he has exhausted
all available administrative remedies. See, e.g., Callwood
v. Enos, 230 F.3d 627, 634 (3d Cir. 2000). The exhaustion
doctrine promotes a number of desirable goals including filtering
out frivolous claims and developing a full and complete record
for trial purposes; nevertheless, exhaustion of administrative
remedies is not required where exhaustion would not effectuate
these goals. See, e.g., Gambino v. Morris, 134 F.3d 156,
171 (3d Cir. 1998); Lyons v. U.S. Marshals, 840 F.2d 202, 205
(3d Cir. 1988); Carling v. Peters, 2000 WL 1022959, *2 (E.D.
Petitioner does not allege that he has exhausted his
administrative remedies, see 28 C.F.R. § 542.10 et seq. Here,
there is no need to exhaust in order to develop a factual record,
nor does this matter require application of the agency's
particular expertise. Petitioner does not challenge the
application of the BOP's policies to him, but instead challenges
whether the policy accurately implements the statute pursuant to
which it was promulgated. This is a question within the expertise
of the courts. See Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843 n. 9 (1984) ("The
judiciary is the final authority on issues of statutory
construction and must reject administrative constructions which
are contrary to clear congressional intent.").
C. Statutory Language and the Changes in BOP policy
Federal law imposes upon the Bureau of Prisons the obligation
and discretion to designate the place of a prisoner's
imprisonment, as follows:
(b) Place of imprisonment. The Bureau of Prisons
shall designate the place of the prisoners's
imprisonment. The Bureau may designate any available
penal or correctional facility that meets minimum
standards of health and habitability established by the Bureau,
whether maintained by the Federal Government or
otherwise and whether within or without the judicial
district in which the person was convicted, that the
Bureau determines to be appropriate and suitable,
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the
(A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional
facility as appropriate; and
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to section 994(a)(2)
of Title 28.
In designating the place of imprisonment or making
transfers under this subsection, there shall be no
favoritism given to prisoners of high social or
economic status. The Bureau may at any time, having
regard for the same matters, direct the transfer of a
prisoner from one penal or correctional facility to
18 U.S.C. § 3621(b).
In addition, federal law provides that prisoners shall, to the
extent practicable, serve the last portion of their imprisonment
under conditions that will facilitate their transition from
prison life to the community.
(c) Pre-release custody. The Bureau of Prisons
shall, to the extent practicable, assure that a
prisoner serving a term of imprisonment spends a
reasonable part, not to exceed six months, of the last 10 per
centum of the term to be served under conditions that
will afford the prisoner a reasonable opportunity to
adjust to and prepare for the prisoner's re-entry
into the community. . . .
18 U.S.C. § 3624(c).
In implementing pre-release custody programming under this
statute, the BOP has traditionally used a variety of
community-based programs, including CCCs, Comprehensive Sanctions
Centers ("CSCs"), the Mothers and Infants Together ("MINT")
program, and Intensive Confinement Centers ("ICCs"), as well as
home confinement. BOP Program Statement ("PS") 7310.04,
Community Corrections Center (CCC) Utilization and Transfer
Procedure (Dec. 16, 1999), provides guidance to BOP staff as to
the administration of pre-release programs generally.
Before December 2002, the BOP interpreted these statutes to
allow the BOP to designate inmates to serve any or all of their
terms of imprisonment in Community Corrections Centers. The BOP
also had a long-standing policy of considering prisoners for up
to 180 days pre-release placement in a CCC, regardless of the
length of sentence.
On December 13, 2003, the Office of Legal Counsel of the United
States Department of Justice prepared a Memorandum Opinion for
Deputy Attorney General Larry D. Thompson on the question
"whether the BOP has general authority, either upon the
recommendation of the sentencing judge or otherwise, to place [a federal offender whom the BOP deems to be low-risk and nonviolent
and who has received a short sentence of imprisonment] directly
in community confinement at the outset of his sentence or to
transfer him from prison to community confinement during the
course of his sentence."
The Office of Legal Counsel ("OLC") began its analysis with a
review of Federal Sentencing Guidelines provisions addressing
imprisonment and community confinement and federal court opinions
concluding that community confinement does not constitute
"imprisonment" for purposes of these Sentencing Guidelines
provisions. The OLC progressed from this analysis to a
determination that a community corrections center ("CCC") can not
constitute a "penal or correctional facility" that may serve as a
place of imprisonment within the meaning of § 3621(b). If a CCC
were considered a place of imprisonment within the meaning of §
3621(b), the OLC reasoned, "then the time limitation in section
3624(c) on BOP authority to transfer a prisoner to a non-prison
site i.e., for a period, not to exceed six months, of the last
10% of the term of his sentence would be rendered null with
respect to community confinement." The OLC concluded that the
practice, pursuant to the BOP's interpretation of § 3621(b), of
placing certain prisoners in CCC for a period longer than that
mandated by the specific language of § 3624(c) was not lawful. Based upon this OLC Memorandum Opinion, on December 16, 2002,
Deputy Attorney General Larry D. Thompson sent a Memorandum to
BOP Director Kathleen Hawk Sawyer advising her the that BOP's
prior interpretation of § 3621(b) as including CCCs is unlawful
and directing the BOP to cease placement of federal prisoners in
CCCs except for the lesser of six months or ten percent of the
sentence imposed on the offender.
On December 20, 2002, the BOP adopted the OLC legal opinion in
a memorandum mandating that "Pre-release programming CCC
designations are limited in duration to the last 10% of the
prison sentence, not to exceed six months." This "ten-percent
rule" represented a reversal of long-standing BOP policy to
consider prisoners for pre-release CCC placement for up to the
final six months of their sentences (the "six-months rule"),
regardless of the total term of imprisonment. See, e.g.,
Schorr v. Menifee, 2004 WL 1320898, *2 (S.D.N.Y. June 14, 2004)
(and cases cited therein). The new ten-percent rule was
instituted without notice to the public and was not reflected in
any BOP Program Statement. The new ten-percent rule generated a
wave of litigation from federal prisoners seeking its
invalidation on various grounds; federal courts addressing the
issues raised in this litigation were sharply divided as to the
validity of the new policy. Id. at *3 (collecting cases). See
also Miranda v. Miner, Civil Action No. 04-2590(JBS) (D.N.J.
Aug. 20, 2004). Responding to this division, on August 18, 2004, the BOP
published proposed regulations regarding placement in CCCs or
home confinement. See 69 Fed.Reg. 51213 (2004). Because
numerous U.S. District Courts had held that a CCC is a "penal or
correctional facility" within the meaning of § 3621(b) and that
the BOP had discretion under 18 U.S.C. § 3621(b) to place
offenders, sentenced to a term of imprisonment, into CCCs at any
time during their imprisonment, the proposed regulations
reflected an acquiescence in that statutory construction and a
determination how to exercise that discretion. Specifically, the
BOP determined to exercise its discretion categorically to limit
its designation of inmates to community confinement*fn2 only
as part of pre-release custody and programming, during the last
ten percent of the prison sentence being served, not to exceed
six months, except where statutorily-created programs authorize
greater periods of community confinement.
Following a period for comment, the BOP issued final
regulations on January 10, 2005, to become effective on February
14, 2005.*fn3 70 Fed. Reg. 1659 (2005). With one minor
change not relevant here, the BOP adopted the proposed rules as final. See
28 C.F.R. §§ 570.20, 570.21.
D. Petitioner's Claims
The promulgation of 28 U.S.C. §§ 570.20 and 570.21 has mooted
Petitioner's challenge to the December 2002 policy. See
Pimental v. Gonzalez, 367 F.Supp.2d 365, 372 (E.D.N.Y. May 3,
2005). Alternatively, this Court has previously held that the
December 2002 policy is a valid exercise of BOP discretion.
See, e.g., Liggett v. Nash, Civil No. 04-4173(FLW) (D.N.J.
Oct. 20, 2004). Thus, Plaintiff is not entitled to relief on his
claim challenging the December 2002 policy.
Petitioner does not assert any specific challenge to the new
regulations in his Petition; indeed, he does not mention the new
regulations at all.*fn4 While this Court is bound to
construe a pro se Petitioner's allegations liberally, this
Court cannot insert into the Petition a claim that is not
reflected there at all.
To the extent the Petition could be construed as asserting that
Petitioner has an absolute right under § 3624(c) to spend the
last six months of his term of imprisonment in a community
corrections center, such a claim is meritless. Sections 3621(b) and 3624(c) do not require pre-release placement in a CCC for any
specified period of time or, indeed, for any period of time.
Section 3624(c) requires only that pre-release custody "be served
under conditions that will afford the prisoner a reasonable
opportunity to adjust to and prepare for the prisoner's re-entry
into the community." Under the statute, this transitional
pre-release custody need not take the form of CCC placement.
See, e.g., Prows v. FBOP, 981 F.2d 466 (10th Cir. 1992),
cert. denied, 510 U.S. 830 (1993); United States v. Laughlin,
933 F.2d 786 (9th Cir. 1991); Gambino v. Gerlinski,
96 F.Supp.2d 456 (M.D. Pa. 2000), aff'd, 216 F.3d 1075 (3d Cir.
2000); Miranda v. Miner, Civil Action No. 04-2590 (JBS) (D.N.J.
Aug. 20, 2004). Thus, Petitioner is not entitled under § 3624(c)
to serve the last six months, or any portion, of his term of
imprisonment in a CCC.
For the reasons set forth above, the Petition must be
dismissed. An appropriate order follows.