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March 17, 2004.

WILLIAM CROWLEY, Plaintiff, -against- THE FEDERAL BUREAU OF PRISONS, et al., Defendant

The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge

On February 21, 2002, after he pled guilty to four counts of the Indictment, I sentenced William Crowley to a term of twenty-nine months incarceration, with a recommendation to the Bureau of Prisons (BOP) that he serve the final eighteen months of that sentence in a halfway house, or Community Confinement Center (CCC). At that time, the BOP adhered to a longstanding practice of transferring inmates from custodial facilities to serve the final six months of their terms in CCCs, with possible discretion before that period for proper cause. In December 2002, pursuant to a new legal interpretation adopted by the U.S. Department of Justice (DOJ), the BOP placed tighter limitations upon the length of time prisoners could spend in CCCs, to the extent that Mr. Crowley would be able to spend only the final two months of his sentence in such an institution. Mr. Crowley now brings a petition for a writ of habeas corpus, challenging the new BOP procedure and its retroactive application to his sentence. At a hearing held on February 19, 2004,1 granted Mr. Crowley's petition, and ordered the BOP to consider transferring Mr. Crowley to a CCC consistent with its policies and procedures in effect at the time I sentenced him, on February 21, 2002, prior to the Page 2 change caused to be made by the Department of Justice, on and after December 16, 2002. I write to set out my reasons.


  Under the United States Sentencing Guidelines, Mr. Crowley's Offense Level was 29 and his Criminal History Category was I. Accordingly, his sentencing range was between 87 and 108 months. However, the defense moved for a downward departure, supported by the government's letter describing Mr. Crowley's substantial cooperation and assistance in helping the government's investigation and in testifying in the trials of his co-defendants. See U.S. Sentencing Guidelines § 5K1.1 (Departure for substantial assistance to authorities).*fn1

  In considering the sentence I should give to Mr. Crowley, I considered other factors as well. Mr. Crowley had a serious condition of Crohn's disease, requiring recurrent balancing of medicines, generally much better performed by local medical practitioners, who would be consistently treating him, than by medical services available to prisoners. His close family relationships, including with his teenage children, also persuaded me that, if possible, he should complete his term in a manner which might enable him to be available to help his family. Finally, he had shown, not only a full acceptance of responsibility for the crimes of fraud to which he had pleaded (and which he helped the government to unravel and prosecute), but substantial and tangible remorse as well, by unstinting and dedicated service as a volunteer worker at neighboring hospital facilities. Although I rejected these factors as independent grounds for departure, See Feb. 21, 2002 Tr., at 38-39,1 had the ability to consider these as additional bases for Page 3 departure under § 5K1.1, and I therefore took them into account when determining Mr. Crowley's sentence.

  In fashioning a sentence for Mr. Crowley, I wanted to reflect both the seriousness of his crime and the factors discussed above. I sentenced Mr. Crowley to one-third of the Guidelines minimum, or twenty-nine months incarceration, relying on the discretion that the Bureau of Prisons had to transfer Mr. Crowley from a custodial facility to a CCC in his neighborhood. I recommended that the BOP consider such a transfer beginning with the last 18 months of his term (after he served somewhat less than a year in a custodial facility), understanding that it was BOP policy to transfer custodial prisoners to a CCC for the last six months of a term. If I had known that the BOP's policy would be that which later was ordered, I believe that I would have sentenced Mr. Crowley to a lesser term, that is, departed farther than I ordered in my sentence.


  1. Subject Matter Jurisdiction

  As an initial matter, I note that Mr. Crowley filed his petition pursuant to 28 U.S.C. § 1331, 2241(a), (c)(1), 2243, and 2255. Prior decisions in this district have held that the district courts may properly exercise subject matter jurisdiction on the issue before me, pursuant to one or more of those statutes. See Cohn v. Bureau of Prisons, 04 Civ. 192, 2004 U.S. Dist. Lexis 1711, at *7-*8 (S.D.N.Y. Feb. 10, 2004), Zucker v. Menifee, 03 Civ. 10077, 2004 U.S. Dist. Lexis 724, at *8-*11 (S.D.N.Y. Jan. 21, 2004); Cato v. Menifee. 03 Civ. 5979, 2003 U.S. Dist. Lexis 21289, at *8 n.1 (SONY Nov. 20, 2003); cf Adler v. Menifee. 293 F. Supp.2d 363, 366-67 (S.D.N.Y. 2003) (holding that a Page 4 similar petition was deficient as filed under § 2255, but would have been properly filed under § 2241, and that "[b]ecause liberty is at stake, the Court should not be delayed by such technicalities, and treats the matter as a Petition filed under § 2241 of Title 28"). I join this weight of precedent and hold that the petition was properly filed and my exercise of jurisdiction is appropriate.

  2. Statutory Authority

  Under Sentencing Guidelines § 5C1.1, a defendant who is a Zone A or B offender is eligible for a sentence which begins with, and is served entirely through, probation or supervised release, with a condition of placement in a CCC. See § 5C1.1(b), (c)(2)-(3). A Zone C offender may serve up to half of his sentence through a term of supervised release that includes a condition of placement in a CCC. See § 5C1.1(d)(2). A Zone D offender must serve his sentence through imprisonment alone, and is not afforded the option of substituting a term of probation or supervised release. See § 5C1.1(f). Even after I granted a departure, Mr. Crowley's sentence classified him as a Zone D offender, who must begin his sentence in prison.

  Where a defendant begins his sentence in a prison, two statutory provisions are relevant to authority of the BOP to transfer inmates from penal facilities to CCCs. The first is a broad grant of authority to the BOP, contained in 18 U.S.C. § 3621(b), to "at any time . . . direct the transfer of a prisoner from one penal or correctional facility to another":

  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 Page 5 Bureau determines to be appropriate and suitable, considering [enumerated factors]. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another. . . .

  The second statute, 18 U.S.C. § 3624(c), makes mandatory such a transfer at the end of a prisoner's term, in the last ten percent or six months, whichever is less. The statute reads:
The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement. The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody.
  The BOP's changed policy follows the latter provision, and neglects the former. See Monahan v. Winn, 276 F. Supp.2d 196, 211 (D. Mass. 2003) (critiquing change of policy; "[w]hat one statute, § 3624(c), requires and another, § ...

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