The opinion of the court was delivered by: HAROLD ACKERMAN, Senior District Judge
This matter comes before the Court on a motion by Defendant
Jonathan C. Miner ("Respondent") to dismiss Luis Pina's
("Petitioner") petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 on the grounds that this Court lacks subject matter
jurisdiction over the instant petition and that the petition
fails to state a claim upon which relief can be granted. For the
following reasons, Respondent's motion to dismiss is GRANTED. I. BACKGROUND
On June 23, 2003, Petitioner pled guilty before this Court to a
single-count information charging conspiracy to steal credit
cards using a skimming device, in violation of
18 U.S.C. § 1029(b)(2). This Court, on November 30, 2004, sentenced
Petitioner to 12 months of incarceration followed by three years
of supervised release. Petitioner began serving his sentence on
January 3, 2005 at the Federal Prison Camp at Fairton, New
On March 28, 2005, Petitioner filed the instant petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241 and for writ
of mandamus pursuant to 28 U.S.C. § 1361. Petitioner contends
that pursuant to longstanding Bureau of Prisons ("BOP") policy,
he is eligible to serve the final six months of his sentence in a
community correctional center ("CCC") at a halfway house, and
therefore should have been designated to a CCC on July 4, 2005.
Petitioner notes, however, that in December 2002, the BOP
implemented a policy of not permitting CCC placements until the
last ten percent of the inmate's sentence. Consequently,
Petitioner contends that Respondent has denied him placement in a
CCC until November 26, 2005, and that the so-called ten-percent
rule is unlawful.
On July 21, 2005, Respondent, through the auspices of the U.S.
Attorneys Office, filed the instant motion to dismiss. In a
thorough and illuminating memorandum of law, Respondent notes
that the two December 2002 memoranda which gave rise to the
contested policy a memorandum by the Attorney General's Office
of Legal Counsel and a memorandum by the Director of the BOP to
the BOP's Chief Executive Officers (the "December 2002
Memoranda") are no longer in effect and were not applied to
Respondent. Respondent notes that since February 14, 2005,
regulations found at 28 C.F.R. §§ 570.20 and 570.21 have governed
the placement of inmates in CCCs, and that these regulations were
applied to Petitioner himself. Accordingly, as Petitioner challenges only the December 2002
Memoranda, Respondent characterizes the petition as "moot" and
seeks dismissal without prejudice pursuant to Federal Rule of
Civil Procedure 12(b)(1) and (6).
It is settled that the Federal Rules of Civil Procedure apply
to habeas corpus proceedings. Fed.R.Civ.P. 81(a)(2); Browder
v. Director, Dept. of Corr., 434 U.S. 257, 269 (1987). Their
applicability is limited, however, by the terms of the habeas
corpus statute, which take precedence over the Federal Rules.
Browder, 434 U.S. at 269 n. 14. Under 28 U.S.C. § 2241, which
permits an inmate to challenge the manner by which his or her
sentence is executed, the Respondent may seek dismissal for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). See Aguilera v. Kirkpatrick, 241 F.3d 1286,
1290 (10th Cir. 2001) ("[W]e hold that, although the district
court had subject matter jurisdiction over the petitioners'
claims under 28 U.S.C. § 2241, it should have dismissed for
failure to state a claim under Rule 12(b)(6).").
Federal Rule of Civil Procedure 12(b)(6) permits a court to
dismiss a pleading, or a count therein, for failure to state a
claim upon which relief may be granted. In evaluating a motion to
dismiss pursuant to Rule 12(b)(6), the court "must accept as true
all well-pleaded allegations of the complaint? and construe them
liberally in the light most favorable to the plaintiffs." Labov
v. Lalley, 809 F.2d 220, 221 (3d Cir. 1987). "Dismissal under
Rule 12(b)(6) is inappropriate `unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.'" Gordon v. Wawa,
Inc., 388 F.3d 78, 80-81 (3d Cir. 2004) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). In other words, a motion to
dismiss pursuant to Rule 12(b)(6) may be granted when the
defendant demonstrates that there is no legal remedy to the alleged wrong.
Courts will view pleadings filed by pro se litigants with a
degree of lenity not normally afforded to attorneys. Estelle v.
Gamble, 429 U.S. 97, 106 (1976). When confronted, however, with
a habeas petition which on its face fails state a claim that
would entitle the petitioner to relief, a district court should
grant dismissal. Einstman v. Fed. Bureau of Prisons, Civ. A.
No. 05-3546, 2005 U.S. Dist. LEXIS 18367, at *3 (D.N.J. Aug. 23,
2005) (citing Lonchar v. Thomas, 517 U.S. 314, 320 (1996)).
The instant petition is grounded solely on Petitioner's
contention that the policy set forth in the December 2002
Memoranda is erroneous and, indeed, unlawful. As Respondent's
motion to dismiss amply demonstrates, however, the policy
contained in the December 2002 Memoranda was not applied in
determining Petitioner's eligibility for placement in a CCC.
Under the BOP's Program Statement [PS] 7310.04 § 8.c, a Unit Team
assigned to an inmate is charged with preparing a "specific
release preparation plan, including a decision as to CCC
referral," within approximately 11 to 13 months before the
inmate's projected release date. Consistent with this directive,
on April 5, 2005, Petitioner's Unit Team made a preliminary
determination to place Petitioner in a CCC for 21 to 36 days. The
Unit Team made its formal recommendation to the Community
Corrections Manager on April 19, 2005, who subsequently assigned
Petitioner a new release date of November 29, 2005.
On February 14, 2005, new BOP regulations concerning the
placement of inmates in CCCs took effect. See Community
Confinement, 28 C.F.R. §§ 570.20 and 570.21 (2005). These
regulations superceded the BOP's former practice, as expressed in
the December 2002 Memoranda. See Florez v. Fed. Bureau of
Prisons, Civil A. No. 05-0667, 2005 U.S. Dist. LEXIS 18364, at
*3 (D.N.J. Aug. 23, 2005) (stating that the December 2002 policy
is "invalid" and holding that this policy does not govern pre-release planning
for an inmate who was in confinement on February 14, 2005, the
date on which the new regulations took effect). Thomas A. Jones,
the Executive Assistant/Camp Administrator for the Federal
Correctional Institution in Fairton, New Jersey, has attested to
having been involved in the decision to recommend 21 to 36 days
of CCC placement for Petitioner. (Decl. of Thomas A. Jones ¶ 4.)
Jones has further declared that this decision was based on the
regulations that took effect on February 14, 2005, and that
"[a]ll other decisions pertaining to this recommendation were
made in compliance with BOP Program Statement 7310.04, Community
Corrections Center Utilization and Transfer." (Id. ¶ 5.) As
Petitioner challenges only the policy expressed in the December
2002 Memoranda, he fails to challenge the regulations which
guided his Unit Team's recommendation of 21 to 36 days' CCC
placement. Galati v. Fed. Bureau of Prisons, No. Civ. A.
05-3241, 2005 U.S. Dist. LEXIS 19564, at *13 (D.N.J. Aug. 31,
2005) ("The promulgation of 28 [C.F.R.] §§ 570.20 and 570.21 has
mooted Petitioner's challenge to the December 2002 policy.").
Numerous courts of this District have dismissed similar
challenges to the December 2002 Memoranda for failure to state a
claim. See, e.g., Galati, 2005 U.S. Dist. LEXIS 19564, at *13;
Florez, 2005 U.S. Dist. LEXIS 18364, at *3; Einstman,
2005 U.S. Dist. LEXIS 18367, at *13-14; Palmer v. Fed. Bureau of
Prisons, Civ. A. No. 04-5895, 2005 U.S. Dist. LEXIS 18147, at *3
(D.N.J. Aug. 22, 2005); Cheston v. Nash, Civ. A. No. 04-5509,
2005 U.S. Dist. LEXIS 18113, at *4 (D.N.J. Aug. 17, 2005);
Berretta v. Fed. Bureau of Prisons, Civ. A. No. 04-5143,
2005 U.S. Dist. LEXIS 17036, at *4 (D.N.J. Aug. 9, 2005); Defrancesco
v. Fed. Bureau of Prisons, Civ. A. No. 05-1780, 2005 U.S. Dist.
LEXIS 14967, at *25 (D.N.J. July 20, 2005). These cases persuade
this Court to conclude that Petitioner's challenge to the policy
expressed in the December 2002 Memoranda affords no basis for the
relief he seeks. Accordingly, the petition fails to state a claim upon which relief can be granted. In so holding, the Court
expresses no opinion on the validity of the new regulations at
28 C.F.R. §§ 570.20 and 570.21.
For the foregoing reasons, Respondent's motion to dismiss is
hereby GRANTED, and Petitioner's petition for writ of habeas
corpus under 28 U.S.C. § 2241 is ...