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Wayne Thomas v. Donna Zickefoose

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


December 14, 2010

WAYNE THOMAS, PETITIONER,
v.
DONNA ZICKEFOOSE RESPONDENT.

The opinion of the court was delivered by: Noel L. Hillman, United States District Judge

MEMORANDUM OPINION AND ORDER

This matter comes before the Court upon submission of a motion for reconsideration, see Docket Entry No. 5, and it appearing that:

1. Initially, the Clerk received the Petition unaccompanied by either Petitioner's filing fee of $5.00 or by his in forma pauperis application. See Docket Entry No. 1.

2. Later, the Clerk received Petitioner's in forma pauperis application. See Docket Entry No. 2. The application qualified Petitioner for in forma pauperis status.

3. The Petition, as drafted, suggested that Petitioner challenged the denial of Petitioner's request for transfer to a residential re-entry center ("RRC") under the Second Chance Act. See Docket Entry No. 1, at 3. In addition, the Petition expressly stated that the exhaustion of administrative remedies would be futile. See id. at 2.

4. Disagreeing with Petitioner's latter statement, the Court granted Petitioner in forma pauperis status and dismissed the Petition without prejudice, as unexhausted, without reaching the merits of his challenges. See Docket Entry No.

4.

5. In response, Petitioner filed the motion for reconsideration which is currently before the Court. See Docket Entry No.

5. The motion: (a) asserted that Petitioner exhausted his administrative remedies; and (b) clarified (by means of exhibits attached to the motion) that the challenges Petitioner exhausted administratively were qualitatively different from the ones seemingly asserted in the Petition. See id. Docket Entries Nos. 5 and 5-1. Specifically, Petitioner's exhibits showed that Petitioner was not challenging a denial of transfer to an RRC under the Second Chance Act (for the purposes of the period envisioned by the Act); rather, he was asserting that his rights were violated because the prison officials were considering him for an RRC transfer 17 to 19 months prior to the expiration of Petitioner's prison term. See Docket Entry No. 5-1. The exhibits established the prison officials' opinion that the assessment of statutory factors (associated with Petitioner's potential transfer to an RRC) would be best conducted about 6 months prior to the point in time when Petitioner's transfer to an RRC, if granted, would allow him to stay at the RRC for the period of 12 months, i.e., the maximum period allowed under the Second Chance Act.*fn1 See id. Petitioner's motion, however, contended that he had a right to be considered for such transfer three-and-a-half years prior to expiration of his sentence. See id. (showing that Petitioner's projected release date, with good-conduct-time credit factored in, is February 26, 2013, while Petitioner initiated his administrative grievance process on August 17, 2009; that is, three-and-a-half years prior to expiration of his sentence and two-and-a-half years prior to the earliest date when he could be placed, under the Second Chance Act, in an RRC). In other words, Petitioner's motion asserted, mostly, an injury in the form of him "not-knowing-the-answer" to the question when he would be transferred to an RRC as soon as Petitioner wanted to know that answer. See id. In addition, Petitioner's motion also asserted that the Bureau of Prisons ("BOP"), having discretionary power to place Petitioner in a facility of the BOP's choice, could transfer Petitioner to an RRC even sooner than twelve months prior to expiration of Petitioner's sentence. See Docket Entry No. 5 (making a passim assertion to that effect and, seemingly, relying on the Second Chance Act to make such assertion). In addition to this latter line of Second Chance Acts claims (or, perhaps, in alternative to this latter line of claims), Petitioner's motion suggested that the BOP should have considered Petitioner for transfer to an RRC sooner than twelve months prior to expiration of Petitioner's sentence under Section 3621(b). See id. Finally, Petitioner's motion also made a brief statement to the effect that Petitioner should be qualified for transfer to an RRC sooner than twelve months prior to expiration of Petitioner's sentence because Petitioner had, allegedly, already served 75% of his sentence. See id.

6. None of these assertions has merit.*fn2

a. To the degree Petitioner wished to assert that his rights are violated because he cannot obtain the desired information sooner, i.e., he has to wait 17 to 19 months prior to his release to find out the date when the BOP plans to transfer him to an RRC (and, consequently, the length of the period he would be allowed to spend in that RRC), such challenges are invalid since the date of Petitioner obtaining the desired information cannot serve as basis for a habeas challenge.*fn3 See Nuckols v. Schultz, 2007 U.S. Dist.

LEXIS 42466 (D.N.J. June 8, 2007) (dismissing § 2241 petition asserting that the BOP violated he inmate's rights by refusing to conduct, more than 36 months prior to the inmate's release, a determination as to whether the inmate was eligible to participate in the residential drug abuse treatment program. Noting that the inmate raise his challenges regardless of the fact that the regulation expressly provided for such determination to be conducted within 36 months of release, the court observed that the only "violation" allegedly suffered by the inmate was his need to wait for BOP's determination, but such "need to wait for a determination" could not amount to a viable habeas claim).

b. To the degree Petitioner wished to assert that, under the language of the Second Chance Act, Petitioner was qualified for a transfer to an RRC three-and-a-half years prior to his release, Petitioner's claims are, too, without merit. Under the Second Chance Act, "[t]he Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the re-entry of that prisoner into the community. Such conditions may include a community correctional facility." 18 U.S.C. § 3624(c)(1) (emphasis supplied).*fn4 In light of statute's unambiguous directive, the BOP has no authority to enlarge this one-year-maximum period. See See Chevron U.S.A Inc. v. Nat'l Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) ("First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the courts, as well as the agency, must give effect to the unambiguously expressed intent of Congress"). Therefore, Petitioner's demands for a transfer placing him in an RRC prior to the last 12 months of his prison term, under the language of the Second Chance Act, is facially without merit.*fn5

c. To the degree Petitioner sought to assert that he qualified for an immediate placement in an RRC under the broad language of Section 3621(b), this claim, too, is without merit. It is correct that the Second Chance Act provides that "[n]othing in this [provision] shall be construed to limit or restrict the authority of the Director of the Bureau of Prisons under [S]section 3621."*fn6 18 U.S.C. § 3624(c). However, Subsection (b) of Section 3621 explains that the relevant analysis should be conducted by the BOP in connection with its general discretionary placement authority:

The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability . . . .

18 U.S.C. § 3621(b) (emphasis supplied).*fn7 Nothing in that language obligates the BOP to place Petitioner in any particular institution at any point of Petitioner's confinement.*fn8 Simply put, for the purposes of his transfer to an RRC, Petitioner must look at the more specific language of the Second Chance Act rather than at the broad language of Section 3621(b), just as an inmate seeking a "nearer to release" transfer must look at the language of the BOP's program statement providing the inmate with that specific right (while building on the five-factors incorporated in the umbrella language of § 3621).

http://www.bop.gov/iloc2/InmateFinderServlet?Transact ion=NameSearch&needingMoreList=false&FirstName=WAYNE&Mi ddle=&LastName=THOMAS&Race=U&Sex=U&Age=&x=70&y=19>> (indicating that Petitioner, being the only Wayne Thomas currently in confinement and the only Wayne Thomas confined at Lewisburg, is 53 years old). 7. In light of the foregoing, Petitioner's motion for reconsideration will be granted in form and denied in substance.*fn9 A motion for reconsideration is a device of limited utility. There are only four grounds upon which a motion for reconsideration might be granted: (a) to correct manifest errors of law or fact upon which the judgment was based; (b) to present newly-discovered or previously unavailable evidence; (c) to prevent manifest injustice; and (d) to accord the decision to an intervening change in prevailing law. See 11 Charles A. Wright et al., Federal Practice and Procedure § 2810.1 (2d ed. 1995); see also Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986) (purpose of motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence). "To support reargument, a moving party must show that dispositive factual matters or controlling decisions of law were overlooked by the court in reaching its prior decision." Assisted Living Associates of Moorestown, L.L.C., v. Moorestown Tp., 996 F. Supp. 409, 442 (D.N.J. 1998). In contrast, mere disagreement with the district court's decision is an inappropriate ground for a motion for reconsideration: such disagreement should be raised through the appellate process. See id. (citing Bermingham v. Sony App'x 110, 2008 U.S. App. LEXIS 12436, at *2-3, n.1 (3d Cir. 2008). However, the very fact of the court's review does not prevent the court from reaching a disposition identical - either in its rationale or in its outcome, or in both regards - to the court's earlier decision. See id. Corp. of America, Inc., 820 F. Supp. 834, 859 n.8 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994); G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990)); see also Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001) (a motion for reconsideration may not be used as a means to reargue unsuccessful theories). Consequently, "[t]he Court will only entertain such a motion where the overlooked matters, if considered by the Court, might reasonably have resulted in a different conclusion." Assisted Living, 996 F. Supp. at 442; see also Continental Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995) ("[M]otions for reconsideration should be granted sparingly"); Edward H. Bohlin, Co. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993) (a district court "has considerable discretion in deciding whether to reopen a case under Rule 59(e)"). Here, none of Petitioner's newly-minted challenges has merit. Therefore, the substantive outcome of the Court's determination will remain the same, i.e., the Petition, as supplemented by the claims asserted in the motion, will be dismissed. IT IS, therefore, on this 14th day of December , 2010, ORDERED that Petitioner's motion for reconsideration, Docket Entry No. 5, is granted in form, and the Petition, Docket Entry No. 1, will remain dismissed. Such dismissal will be with prejudice as to all Petitioner's claims asserted in his motion for reconsideration. Such dismissal will remain without prejudice as to Petitioner's claims asserted in his Petition in the sense that, if Petitioner's prison officials do not consider him for transfer for the last 12 months of his confinement (pursuant to the Second Chance Act) or deny him such transfer (in violation of the statutory requirements of the requirements posed by the factors detailed in Section 3621), Petitioner may renew his challenges articulated in his Petition; and it is further ORDERED that the Clerk shall serve a copy of this Memorandum Opinion & Order upon Petitioner, by regular U.S. mail and it is finally ORDERED that the Clerk shall close the file in this matter by making a new and separate entry on the docket reading "CIVIL CASE CLOSED."

d. Finally, the rationale of Petitioner's reference to him having served, allegedly, 75% of his prison term is unclear. The only reference to a 75% figure this Court is aware of in the context of the Second Chance Act is the one made in the Act directing the Attorney General, in coordination with the BOP, to institute a pilot program "to determine the effectiveness of removing eligible elderly offenders from a Bureau of Prisons facility and placing such offenders on home detention" until their term of confinement has expired. See 42 U.S.C. § 17541(g)(5)(A) (i)-(iii) (for purposes of that pilot program, an "eligible elderly offender" was defined as an offender who, inter alia, is at least 65 years old and has served the greater of 10 years or 75% of the term imposed at his/her sentencing). However, this portion of the Second Chance Act is facially inapplicable to Petitioner's circumstances. See

At Camden, New Jersey


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