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Yushuvayev v. Hollingsworth

United States District Court, D. New Jersey

March 18, 2015


Petitioner pro se, Fort Dix, NJ.

David Vincent Bober, Assistant U.S. Attorney, Office of the U.S. Attorney, Trenton, NJ

Paul A. Blaine, Office of the U.S. Attorney, Assistant U.S. Attorney, Camden, NJ, Counsel for Respondent.


NOEL L. HILLMAN, District Judge.

Petitioner Nisim Yushuvayev, a prisoner confined at the Federal Correctional Institution ("FCI") at Fort Dix, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.[1] The sole named Respondent is Warden Jordan Hollingsworth.

Because it appears from a review of the Petition and the parties' submissions that Petitioner is not entitled to relief, the Petition will be denied.


On November 15, 2006, Petitioner was sentenced in the United States District Court for the Eastern District of New York to a term of 120 months imprisonment, with 5 years of supervision to follow, for conspiracy against rights, in violation of 18 U.S.C. § 241. The conviction stemmed from a scheme in which Petitioner, while working as a Customs and Border Patrol Agent, attempted to unlawfully deport a cooperating witness who was expected to testify for the Government in an alien smuggling case. Both parties are in agreement that, assuming he receives all available good-conduct credit available, Petitioner's projected release date is July 25, 2015.

On November 7, 2013, approximately 20 months in advance of Petitioner's projected release date, his Unit Team at FCI Fort Dix held a "program review" during which it discussed whether Petitioner should be placed in a Residential Re-entry Center ("RRC") prior to his release. Ultimately, the Unit Team assigned to Petitioner's case determined that an RRC placement of 90-120 days was sufficient.

Unsatisfied with this determination, Petitioner filed a motion with the judge who sentenced him, seeking a judicial recommendation that he be placed in an RRC for twelve months. On August 4, 2014, the sentencing judge granted the motion, finding that "twelve months of placement in a RRC would facilitate the Defendant's re-adjustment into the community." Petition at 41 ("Exhibit J"), Yushuvayev v. Warden Hollingsworth, No. 14-5851 (D.N.J. Sept. 22, 2014) ECF No. 1. The court directed that the order be forwarded to Petitioner's case manager at FCI Fort Dix. Id. As a result, on August 19, 2014, Petitioner's Unit Team held a meeting to reconsider Petitioner's RRC placement in light of the sentencing judge's order. The Unit Team reconsidered Petitioner's placement but adhered to its initial recommendation of 90-120 days.

On or about January 19, 2014, Petitioner filed an administrative remedy form with the warden of FCI Fort Dix, challenging his Unit Team's RRC recommendation. On February 4, 2014, the warden denied the request. Petitioner appealed that determination administratively, and the appeal was denied on April 2, 2014. Petitioner then appealed that denial to the BOP Central Office, and did not receive a response.

Subsequently, Petitioner filed this Petition for Writ of Habeas Corpus challenging certain aspects of the execution of his federal sentence. Specifically, Petitioner contends that "the discretion utilized to limit Petitioner's RRC Placement was not exercised... in accordance with the relevant statutory factors.'" Reply at 3, Yushuvayev, No. 14-5851, ECF No. 5 (emphasis omitted). Petitioner requests that the Court: (1) require the Bureau of Prisons to "reconsider the length of Petitioner's RRC placement in accordance with the Second Chance Act without regard to the limitations imposed by the April 14, 2008, November 14, 2008 and June 24, 2010 memoranda"; and (2) compel the "Regional Director to separately and in good faith consider whether Petitioner should be awarded a 12-month RRC placement as an incentive for his participation in BOP's skills development program." Id.

In an Order entered on October 14, 2014, this Court ordered Respondent to file an answer, which was received on November 14, 2014.[2] Petitioner filed a Reply on December 4, 2014. Briefing is complete and this matter is now ready for decision.[3]


A. The Second Chance Act

Title 18 Section 3621(b) governs Bureau of Prisons inmate placement decisions, generally, and provides:

(b) Place of imprisonment. 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 established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering-
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed ...

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