United States District Court, D. New Jersey
October 18, 2005.
BOBBY MITCHELL, Petitioner,
THE FEDERAL BUREAU OF PRISONS, et al., Respondents.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Bobby Mitchell, 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 I. BACKGROUND
Petitioner asserts that in 2002 he pleaded guilty to one count
of conspiracy to defraud the United States in the United States
District Court for the Eastern District of Pennsylvania. On June
8, 2004, Petitioner was sentenced to a term of imprisonment of 30
months. On July 30, 2004, Petitioner self-surrendered to the
Federal Correctional Institution at Fort Dix, where he remains.
On September 28, 2004, the Administrative Staff at FCI-Fort Dix
provided Petitioner with a "Sentence Monitoring Computation Data
Form" which provided for a statutory release date of May 10,
2006. The Sentence Monitoring Computation Data Form also includes
a "Pre-Release Preparation Date" of February 21, 2006.
Petitioner alleges that the February 21, 2006, Pre-Release
Preparation Date is based upon a December 13, 2002, Memorandum
Opinion, and a December 20, 2002, Memorandum to implement the
Memorandum Opinion, which interpret governing statutes to
prohibit placement in a Community Corrections Center before the
last ten-percent of a prisoner's term of imprisonment, not to
exceed six months. See 18 U.S.C. §§ 3621(b) and 3624(c).
Petitioner contends that the Bureau of Prisons' interpretation of
the governing statutes is incorrect and that he is entitled to be
considered for pre-release transfer to a CCC pursuant to the
BOP's previous policy, which would have permitted consideration for pre-release transfer up to six months before the anticipated
Respondents answered the Petition, asserting that Petitioner's
claim was not ripe and arguing that the Petition should be
dismissed for failure to exhaust administrative remedies.
During the pendency of this action, however, the Bureau of
Prisons issued new regulations regarding community confinement,
including pre-release transfer to a CCC, which became effective
on February 14, 2005. See 28 C.F.R. §§ 570.20, 570.21, 70
Fed.Reg. 1659, 1663 (Jan. 10, 2005). Accordingly, this Court
granted Petitioner leave to file a supplemental brief explaining
the effect, if any, of the new regulations on the claims asserted
in his Petition, and granting Respondents leave to file a reply
to any such supplemental brief.
The time for response has lapsed, and Petitioner has failed to
file a supplemental brief. Accordingly, this matter is ripe for
As noted above, this Court has directed Petitioner's attention
to the new regulations and has granted Petitioner the opportunity
to provide the Court with a supplemental brief explaining the
effect, if any, of the new regulations on the claims asserted in
the Petition. Petitioner has failed to file such a supplemental
brief. This Court has previously held that the BOP December 2002
policy is invalid. See Miranda v. Miner, 04-cv-2590 (JBS). It
is apparent, however, that the December 2002 policy will not
govern the pre-release planning for Petitioner, who was
incarcerated on February 14, 2005, the effective date of the new
BOP regulations. See 70 Fed. Reg. 1659 (Jan. 10, 2005).
As Petitioner challenges only a policy that is no longer in
effect, and does not challenge the policy that will govern his
pre-release planning, Petitioner's claims are moot and the
Petition must be dismissed.
This Court expresses no opinion on the validity of the new
regulations at 28 C.F.R. §§ 570.20 and 570.21.
For the reasons set forth above, the Petition will be dismissed
as moot. An appropriate order follows.
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