United States District Court, D. New Jersey
September 19, 2005.
CALVAN DAVIS, Petitioner,
THE FEDERAL BUREAU OF PRISONS, et al., Respondents.
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the December 2002 policy is no longer in force, and that the more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 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.
Respondents assert that Petitioner did not exhaust his
administrative remedies, see 28 C.F.R. § 542.10 et seq. Here,
however, 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 December 2002 policy accurately implements the
statute pursuant to which it was promulgated. The BOP's December
2002 policy is categorical, meaning that the BOP will not
consider a transfer to CCC-type confinement until the last 10% of
any prisoner's sentence. 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, considering
(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, 2002, 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 permit
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 explicitly
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 (the "2005 Regulations").
D. Petitioner's Claims
It is apparent that Petitioner's pre-release programming will
be determined pursuant to the 2005 Regulations. Thus, the
promulgation of 28 C.F.R. §§ 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,
Petitioner has not challenged the 2005 Regulations.
Accordingly, this Court expresses no opinion as to the validity
of the 2005 Regulations or of their application to Petitioner.
Finally, to the extent the Petition could be construed as
asserting an absolute right under § 3624(c) to six months
pre-release placement in a CCC, it is without merit. 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 for a specified
period of time or, indeed, for any period of time. 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).
For the reasons set forth above, the Petition must be denied.
An appropriate order follows.
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