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DAVIS v. FEDERAL BUREAU OF PRISONS

September 19, 2005.

CALVAN DAVIS, Petitioner,
v.
THE FEDERAL BUREAU OF PRISONS, et al., Respondents.



The opinion of the court was delivered by: KATHARINE HAYDEN, District Judge

OPINION

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.

  I. BACKGROUND

  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for failure to exhaust administrative remedies, that Petitioner's claim is moot because the December 2002 policy is no longer in force, and that the more recent regulations governing pre-release transfer to a CCC (which they contend will govern Petitioner's pre-release programming) are valid.

  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.

  II. ANALYSIS

  A. Jurisdiction

  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 ...


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