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FRICKER v. MENIFEE

United States District Court, S.D. New York


June 4, 2004.

ROBERT FRICKER, Petitioner, V. FREDERICK MENIFEE, Respondent

The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion

Before the Court is Magistrate Judge Fox's Report and Recommendation denying Petitioner's request for a writ of habeas corpus. For the reasons below, the Court adopts those portions of the Report that deny the petition on grounds of mootness.

BACKGROUND

  Petitioner Robert Fricker filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, seeking placement in a community confinement center ("CCC"). This issue arises out of a change in policy adopted by the United Stated Bureau of Prisons ("BOP") regarding when a prisoner may be transferred to a CCC facility under 18 U.S.C. § 3624. Specifically, the BOP altered its longstanding policy that allowed it to place low-risk, nonviolent offenders with short terms of imprisonment in a CCC facility for the last 6 months of their sentence, and instead, adopted a policy that permitted this transfer for a period not to exceed the lesser of, (1) the last ten percent of a prisoner's sentence, or (2) six months. Petitioner was sentenced to a term of 46 months imprisonment prior to the change in policy, and would have been eligible under the old policy to be transferred to a CCC facility on February 27, 2004. Under the new policy, this transfer would be delayed approximately 2 months. Petitioner challenges the new policy on the grounds that, (1) as applied to him, it violates the ex post facto clause of the Constitution, (2) it was adopted without proper notice and comment, in contravention of the Administrative Procedure Act's rulemaking provisions, see 5 U.S.C. § 553, and (3) it is predicated on a misinterpretation of the relevant statute.

  Magistrate Judge Kevin Nathaniel Fox issued a Report and Recommendation, dated May 11, 2004("Report"), denying Petitioner's request for a writ on several grounds, one of which was mootness. Neither of the parties filed objections.

  DISCUSSION

  A district court "may adopt those portions of a Magistrate's report to which no objections have been made and which are not facially erroneous." Pressley v. Bennett, 235 F. Supp.2d 349, 351 (S.D.N.Y. 2003) (citing Fed.R.Civ.P. 72(b)); see also Thomas v. Arn, 474 U.S. 140, 149 (1985). The court is required to conduct de novo review of those portions of a Magistrate's report that a party has submitted written objections to, see Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998), and may accept, reject or modify the findings and recommendations of the Magistrate. See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994).

  The Court has reviewed Magistrate Judge Fox's Report, and because no party has filed any objections thereto, the Court may adopt any and all portions of the Report that are not clearly erroneous.

  The Court agrees with, and adopts, the Report insofar as it finds Petitioner's claim moot. Petitioner has already been placed in a CCC facility, and therefore, there is no case or controversy for this Court to adjudicate. See Report at 9.

  Because this Court does not have jurisdiction over Petitioner's claims, it declines to address the merits of his claims or those portions of the Report that address the merits of his claims.

  Conclusion

  The Court hereby adopts Magistrate Judge Fox's Report insofar as it denies Petitioner's request as moot. The Clerk of the Court is directed to close this case.

  SO ORDERED.

20040604

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