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Wayne Thomas v. Donna Zickefoose

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. ยง 3624(c). However, Subsection (b) of Section 3621 explains that ...


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