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FRICKER v. MENEFEE

May 11, 2004.

ROBERT A. FRICKER, Petitioner
v.
FREDERICK MENEFEE, Respondent



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

I. INTRODUCTION

Robert Flicker ("Flicker") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Through the application, Flicker seeks immediate placement in a community confinement center ("CCC"), in order to avoid the consequences of a change in policy adopted by the United States Bureau of Prisons ("BOP") to conform its practices to the statutory dictates of 18 U.S.C. § 3624(c). BOP's change in policy delays by two months the point at which Flicker would be considered for transfer from the Federal Correctional Institution at Otisville, New York, to a CCC. Flicker contends that the application of the BOP policy to him is violative of the Constitution's ex post facto provision. Moreover, he maintains that the BOP policy is a "rule" and was adopted in contravention of the Administrative Procedure Act rulemaking provisions, (see 5 U.S.C. § 553), in that proper notice of and an appropriate period for comment on the "rule" was not given to him. Furthermore, Flicker asserts that the BOP policy is predicated upon a misinterpretation of the relevant statute and, moreover, the policy conflicts "with controlling precedent [from] the Southern District of New York."

  The respondent opposes Fricker's application. He contends that the BOP policy at issue corrects a previous misinterpretation of the express language of 18 U.S.C. § 3624(c). The respondent maintains that BOP's policy change violated neither the notice and comment provision of the Administrative Procedure Act nor the ex post facto provision of the Constitution. In addition, the respondent challenges the propriety of the petitioner's use of 28 U.S.C. § 2241 to obtain the relief he seeks from the court.

  II. BACKGROUND

  On December 13, 2002, the Office of Legal Counsel, United States Department of Justice, issued a memorandum opinion for the deputy United States attorney general, which advised, among other things, that a longstanding BOP policy that allowed the agency to place low-risk nonviolent offenders with short terms of imprisonment in CCC facilities, either upon judicial request or sua sponte, was unlawful. Based upon the opinion expressed in the memorandum, the deputy attorney general advised BOP's director, so far as it is pertinent in the instant case, that a transfer of a prisoner to a CCC facility may be for a period not to exceed the lesser of: (a) the last ten per centum of a prisoner's sentence; or (b) six months, as provided for in 18 U.S.C. § 3624(c). Previously, it had been BOP's practice to consider a prisoner eligible for placement in a CCC facility for the last six months of the prisoner's sentence even if that period of time exceeded the last ten per centum of the prisoner's term of imprisonment.

  BOP advised its chief executives of the legal opinion memorandum and the position of the deputy attorney general. Thereafter, on December 30, 2002, the respondent issued a memorandum to the prison population housed at the Federal Correctional Institution at Otisville, New York, the facility at which the petitioner was serving his sentence. Through that memoran-dum, the respondent advised those in custody of the change in BOP policy respecting a prisoner's eligibility for consideration for prerelease placement in a CCC facility. The respondent explained that the change in policy was due to the opinion issued on December 13, 2002, by the Department of Justice, Office of Legal Counsel. Under the BOP policy in existence when Fricker commenced his sentence, Flicker contends that he would have become eligible for consideration for prerelease placement in a CCC facility on February 27, 2004, that is, six months prior to the expiration of his 46-month sentence. However, Fricker maintains that his eligibility for consideration for placement in a CCC facility will be delayed for approximately two months because of the change in BOP policy adopted in December 2002. It is this delay that has prompted him to request, through the instant application, that he be placed in a CCC facility in accordance with the BOP policy that existed prior to December 2002.

  III DISCUSSION

 Availability of Habeas Corpus Relief

  The respondent contends that an application for a writ of habeas corpus is a request that a court grant a petitioner an extraordinary remedy. Therefore, it is not the proper vehicle through which Fricker may challenge the BOP's determination concerning the facility in which he will be confined prior to his release from incarceration. The Court disagrees. In essence, Fricker's application for a writ of habeas corpus presents a challenge to the execution of his sentence. A challenge to the execution of a federal prisoner's sentence may properly be raised through an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Chambers v. United States, 106 F.3d 472, 473-475 (2d Cir. 1997); Villanueva v. United States, 346 F.3d 55, 63 (2d Cir. 2003). Therefore, the Court finds that Fricker's application for a writ of habeas corpus is within the court's jurisdiction and may be entertained.

 Ex Post Facto

  Article I, Section 9 of the Constitution proscribes the passage of a bill of attainder or an ex post facto law. "The ex post facto prohibition forbids the Congress and the States to enact any law `which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964 (1981)(citations omitted). In the case at bar, petitioner does not claim that any law was enacted that punishes some conduct that previously was not subject to punishment or that a law was enacted that imposes additional punishment on him beyond that which was imposed at the time he was sentenced. Rather, petitioner alleges that the policy adopted by BOP, that merely requires it to conform its practices to the express language found in 18 U.S.C. § 3624(c), violates the Ex Post Facto Clause because, as applied to him, the new policy eliminates "a discretionary benefit," that is, the eligibility to be considered for prerelease placement in a CCC for six months without regard to whether placement in a CCC for that period of time exceeds a period equivalent to the last ten per centum of a prisoner's sentence.

  "Where, as here, Congress has delegated authority to an agency to administer a statute but not to issue rulings with the binding effect of law, courts must afford that agency's interpretations `some deference' where they constitute `a permissible construction of the statute.'" Cohn v. Federal Bureau of Prisons, 302 F. Supp.2d 267, 271 (S.D.N.Y. 2004)(citations omitted). Congress has authorized BOP to administer 18 U.S.C. § 3624. Consequently, its interpretation of the statute must be accorded some deference. See Cohn, 302 F. Supp.2d at 271. As noted above, BOP's pre-December 2002 policy concerning the prerelease placement of a prisoner in a CCC facility for six months, regardless of whether that period of time exceeded ten per centum of the sentence remaining to be fulfilled by the prisoner, was in tension with the expressive language of the relevant statute. Fricker appears to contend that he had a vested right to be placed in a CCC for the final six months of his sentence even if that period of time would be greater than ten per centum of the portion of his sentence that remained to be served. The Court rejects Fricker's view because "[n]obody has a vested interest in violation of the law no matter how long continued." Adler v. Menifee, 293 F. Supp.2d 363, 367 (S.D.N.Y. 2003). Moreover, an agency is free to revisit policies it has adopted over time and to revise those policies when it determines it is reasonable and appropriate to do so. See Chevron v. Natural Resources Defense Council Inc., 467 U.S. 837, 863-864, 104 S.Ct. 2778, 2792 (1984). When an agency determines to change its policy because of a new interpretation of a statute, its interpretation of the statute is still entitled to some deference from a court. This is so notwithstanding the fact that the new ...


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