The opinion of the court was delivered by: KATHARINE HAYDEN, District Judge
Petitioner Calvan Davis, 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 (the "Bureau" or "BOP"), BOP Director Harley G. Lappin,
and Warden John Nash.
For the reasons expressed herein, the Petition must be denied.
In 2004, Petitioner pleaded guilty to one count of Dealing in
Counterfeit Obligations and Securities in violation of
18 U.S.C. § 473. On September 8, 2004, this Court sentenced Petitioner to a
term of imprisonment of 18 months. On October 18, 2004,
Petitioner self-reported to the Federal Correctional Institution
at Fort Dix, New Jersey, to commence service of his sentence,
where he remains confined.
Petitioner's projected release date is February 3, 2006.
Petitioner has been advised that his "Pre-Release Preparation
Date," or the earliest date he would be considered for transfer
to a Community Corrections Center for pre-release programming
pursuant to 18 U.S.C. § 3624(c), is December 19, 2005.
Petitioner contends that his Pre-Release Preparation Date was
determined pursuant to a change in BOP policy regarding
pre-release transfer to CCCs that took place in December 2002.
Petitioner contends that the December 2002 policy is "illegal"
and he requests that the Respondents be ordered to reconsider him
for pre-release transfer to a CCC as of August 3, 2005. Petitioner has not exhausted his administrative remedies and
asserts that exhaustion would be futile.
Respondents have filed an answer in which they assert that this
Court lacks jurisdiction to proceed with this § 2241 Petition,
that the Petition should be dismissed for failure to exhaust
administrative remedies, that Petitioner's claim is moot because
the December 2002 policy is no longer in force, and that the more
recent regulations governing pre-release transfer to a CCC (which
they contend will govern Petitioner's pre-release programming)
Petitioner has not replied to the Answer, nor has he sought
leave to file an Amended Petition addressing Respondents'
arguments in support of the current regulations.
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. 1902), 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 ...