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Strong v. Schultz

February 26, 2009

DOUGLAS ARTHUR STRONG, PETITIONER,
v.
PAUL SCHULTZ, ET AL., RESPONDENTS.



The opinion of the court was delivered by: RENÉE Marie Bumb United States District Judge

FOR PUBLICATION

OPINION

BUMB, District Judge

Petitioner Douglas Strong filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging the date set by the Bureau of Prisons ("BOP") for his pre-release custody placement in a residential re-entry center ("RRC"), also known as a community corrections center (hereinafter referred to as "CCC"). The BOP filed an Answer, accompanied by the declarations of Joseph Denby and Vanessa Herbin-Smith, together with several exhibits. Petitioner Strong filed a pro se Reply and a Reply through appointed counsel. For the reasons explained in this Opinion, the Court will grant the Writ and remand the matter to the BOP for re-determination of Petitioner's placement date.

I. BACKGROUND

Strong is incarcerated at FCI Fairton in New Jersey, serving a 33-month term of imprisonment imposed on November 13, 2007, by the United States District Court for the Southern District of California, based on his guilty plea to one count of bringing in illegal aliens without presentation. See United States v. Strong, Crim. No. 07-1989 (DMS) judgment (S.D. Cal. Nov. 13, 2007). The Petition, as amended, challenges the BOP's decision dated October 2, 2008, which determined that Strong is entitled to six months pre-release custody placement in a CCC from June 11, 2009, until his release date of December 7, 2009.

Specifically, Petitioner contends that the BOP determined this date pursuant to a directive from the General Counsel of the BOP that is contrary to the mandate of the Second Chance Act of 2007, Pub. L. No. 110-199, Title II, § 251, 122 Stat. 657, 692 (effective Apr. 9, 2008) (the "Second Chance Act"), codified at 18 U.S.C. §§ 3621, 3624. The Second Chance Act increases the duration of pre-release placement in a CCC from six to 12 months and requires the BOP to make an individual determination that ensures that the placement be "of sufficient duration to provide the greatest likelihood of successful reintegration into the community." 18 U.S.C. § 3624(c)(6)(C) (Apr. 9, 2008). Strong seeks a CCC placement of 12 months because, given his health needs, 12 months will provide a greater likelihood of successful reintegration into the community than six months.

The facts are not in dispute. On December 20, 2007, Petitioner filed a Request for Administrative Remedy challenging his CCC placement date. On January 24, 2008, the Warden determined that Petitioner cannot be placed in a CCC prior to August 31, 2009. Petitioner appealed, arguing that he should receive the maximum CCC placement because he has been diagnosed with a terminal illness and must obtain medical and substance abuse treatment before obtaining employment. On February 22, 2008, the Regional Director determined that Petitioner will be evaluated for CCC placement no later than 11 to 13 months before his projected release date in accordance with applicable statutes, regulations, and case law, as it exists at that time.

Petitioner appealed to the Central Office. On May 19, 2008, Harrell Watts, National Inmate Appeals Administrator, responded, in relevant part, as follows:

Records indicate your projected release date is December 7, 2009, via Good Conduct Time Release. As a result of the Second Chance Act of 2007, you will be reviewed for RRC placement by your unit team between 17 and 19 months of your projected release date. If you are not satisfied with the recommendation by staff when rendered, you may initiate a Request for Administrative Remedy at your local institution.

(Administrative Remedy Response No. 477229-A1, by Harrell Watts dated May 19, 2008) (Docket entry #13-4, p. 4.)

On July 7, 2008, the Warden signed Strong's first Institutional Referral for a CCC placement of 60 days. On or about July 16, 2008, Strong filed the § 2241 Petition presently before this Court. The Petition challenges the 60-day placement as contrary to 18 U.S.C. § 3621(b) and § 3624(c), as amended by the Second Chance Act on April 9, 2008. Petitioner asserts that he is entitled to be considered for a 12-month CCC placement under the Second Chance Act and, given his long history of drug addiction, his history of non-violent drug-related crimes, his HIV diagnosis, the removal of his spleen, his need for various medications, and his relapse potential, he has a greater likelihood of successful reintegration with a 12-month placement.

On October 15, 2008, Respondents filed the Answer, together with the declarations of Joseph Denby, Petitioner's case manager, and Vanessa Herbin-Smith, Supervisory Paralegal Specialist, and several documents. According to the Answer, on August 20, 2008, United States District Judge Dana M. Sabraw amended Petitioner's judgment of conviction to provide for two years of supervised release and to delete the supervised release condition requiring Petitioner to reside in a CCC for 120 days. According to Joseph Denby, Petitioner's Unit Team reconsidered Petitioner's CCC placement date in light of this development. On October 2, 2008, Warden Schultz signed a second Institutional Referral for CCC Placement, which provides for a six-month placement (June 11, 2009, through December 7, 2009). The referral form states that Petitioner has a substance abuse history of alcohol, cocaine and heroin and sets forth the following specific pre-release needs:

Inmate Strong is being referred for Residential Re-entry Center placement for a period of 180 days, pursuant to the Second Chance Act. The Unit Team has determined the recommended placement is of sufficient duration to provide the greatest likelihood of successful reintegration into the community. He will be able to use this time to establish employment and enhance family ties. He has general job skills, life skills, and community resources. He has a letter of reasonable assurance from Exponents Drug Treatment. He has been excepted (sic) into the program. He has three years Supervised Release to follow. He is participating in the Inmate Financial Responsibility Program in order to pay his $100.00 Felony Assessment fee. He has been diagnosed [HIV positive]. He is currently taking medications daily for these health issues. Transitional Services will be requested because of his substance abuse history. (Institutional Referral for CCC Placement dated Oct. 2, 2008) (Docket entry 13-3, p. 43.) (emphasis added)

Denby indicates that Petitioner's placement date of June 11, 2009, was determined pursuant to the Second Chance Act, as interpreted by a memorandum dated April 14, 2008, from the BOP's Office of General Counsel and Correctional Programs Administrator.*fn1 (Denby declaration, ΒΆ 5) (Docket entry #13-2, p. 3.) The memorandum is attached to Denby's declaration. (Memorandum for Chief Executive Officers, dated April 14, 2008, entitled "Pre-Release Residential Re-Entry Center Placements Following the Second Chance Act of 2007," from Joyce K. Conley, Assistant Director of Correctional Programs ...


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