United States District Court, S.D. New York
June 14, 2004.
SEYMOUR SCHORR Petitioner,
FREDERICK MENIFEE, WARDEN, Federal Correctional Institution Otisville, New York, Respondent.
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
Seymour Schorr, a federal prisoner, brings this petition to
challenge the application of a new federal Bureau of Prisons
("BOP") policy to him because it operates to delay his
eligibility for transfer from his present place of confinement to
a community confinement center ("CCC"). He seeks a writ of habeas
corpus, pursuant to 28 U.S.C. § 2241, and a writ of mandamus,
pursuant to 28 U.S.C. § 1361, ordering Frederick Menifee, Warden
of the Federal Correctional Institute at Otisville, New York to
release him to a CCC immediately. He claims that the BOP policy
at issue was enacted after the date when he entered a guilty plea
resulting in his present confinement, and that policy is invalid
as applied to him because it is contrary to established law, a
violation of the Ex Post Facto Clause of the Constitution, Art.
I, § 9 cl. 3, and a violation of the rule-making procedures of
the Administrative Procedures Act ("APA"), 5 U.S.C. § 553.
Because, as set forth below, the BOP's refusal to consider
Schorr's eligibility for placement in a CCC violates the Ex Post
Facto Clause of the Constitution, Schorr's petition is granted. I. Background
A. Procedural History
On March 30, 2000, Schorr pled guilty to one count of
conspiracy to commit bank fraud and one count of conspiracy to
commit tax evasion. (Return, Exh. C). Based on that guilty plea,
Judge Federic Block of the Eastern District of New York
subsequently imposed a sentence of one year and one day and
Schorr is currently serving that sentence at the Federal
Correctional Institution in Otisville, New York.
He began serving that sentence on September 8, 2003. (Pet. ¶
15). Schorr's full sentence would expire on September 8, 2004.
However, according to the BOP, his projected release, with good
time credits, is July 22, 2004. (Pet. Exh. D, "Petitioner's
Progress Report dated January 21, 2004"). When Schorr entered his
guilty plea in March 2000, pursuant to BOP policies, inmates were
eligible to serve the final six months of their sentences at
CCCs, also referred to as "halfway houses." (Pet. ¶ 1, citing
Exh. A, "BOP Program Statement 7310.04, Community Corrections
Center Utilization and Transfer Procedure" ("1998 BOP Memo") ¶ 5,
at 3-4 (1998)).
B. The BOP Policy Regarding Transfers to CCCs
Numerous courts have provided a history and performed an
analysis of the shift in the BOP's interpretation of its
statutory authority to transfer inmates to CCCs pursuant to
18 U.S.C. § 3621 and 3624, and therefore only a brief summary will
be provided here.*fn1
18 U.S.C. § 3621(b) provides in relevant part: "The [BOP] 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. . . . The Bureau may at any time . . . direct the
transfer of a prisoner from one penal or correctional facility to
another." Until December 2002, the BOP read this statute as granting it the authority to designate a CCC as a
place of confinement and followed a policy of evaluating inmates
for placement in a CCC for the last six months of a term of
imprisonment ("Six-Month Policy"). (1998 BOP Memo).
On December 13, 2002, the Department of Justice's Office of
Legal Counsel ("OLC") issued a memorandum declaring that policy
to be "unlawful." (Pet. Exh. B, "Bureau of Prisons Practice of
Placing in Community Confinement Certain Offenders Who Have
Received Sentences of Imprisonment," dated December 13, 2002
("OLC Memo")). The OLC analysis concluded that the BOP could not
designate a CCC as a place of confinement pursuant to section
3621 because a CCC is not a "penal or correctional facility"
within the meaning of the statute. (OLC Memo). In making that
determination, the OLC cited the U.S. Court of Appeals for the
Second Circuit decision in United States v. Adler, 52 F.3d 20,
21 (2d Cir. 1995), which held that for the purposes of the U.S.
Sentencing Guidelines, a CCC is not a place of imprisonment.
The same memorandum set forth for the first time the view that
18 U.S.C. § 3624(c), which does provide the BOP the authority to
send prisoners to CCCs, sets an upper limit on the amount of time
that a prisoner can serve in a CCC at 10% of his or her
sentence.*fn2 See Cohn v. Federal Bureau of Prisons,
302 F. Supp.2d 267, 271 (S.D.N.Y. 2004) (citing 18 U.S.C. § 3624(c)).
Essentially, the OLC determined that 18 U.S.C. § 3621 did not
grant the BOP the authority to send prisoners to CCCs because
CCCs are not places of imprisonment, and that only
18 U.S.C. § 3624 permitted the BOP to designate prisoners to non-penal institutions. The OLC then determined that 18 U.S.C. § 3624 did
not permit a designation to a CCC for more than 10% of a
On December 20, 2002 the BOP adopted the OLC Memo's legal
opinion in a memorandum mandating that "[p]re-release programming
CCC designations are limited in duration to the last 10% of the
prison sentence, not to exceed six months." (Pet. ¶ 3, Exh. C,
Memorandum re: "Community Confinement Procedure Changes,"
("December 20 Memo") p. 2). The BOP thereby instituted the policy
of designating prisoners to CCCs for no more than 10% of their
sentences (the "10% Rule"). The December 20 Memo also states that
the new policy will be immediately applied to incarcerated
prisoners. (Id., at p. 3 ("[A]ll inmates being considered for
pre-release CCC placement must be immediately reviewed for
compliance with this revised procedure.")). The 10% Rule reversed
the long-standing BOP Six-Month Policy of sending prisoners to
CCCs for up to the final six months of their sentences,
regardless of the total term of imprisonment. See Panchervikov
v. Federal Bureau of Prisons, No. 04 Civ. 2531, 2004 WL 875633,
*3 (S.D.N.Y. April 23, 2004) ("For years, if not decades, the BOP
has followed the practice of placing certain prisoners in CCCs
for the last six months of their sentence, irrespective of the
length of those sentences and without regard to the 10% Rule."
(citing Crapanzano v. Menifee, No. 04 Civ. 1052, 2004 WL
736860, at *4 (S.D.N.Y. Apr. 5, 2004)).
Pursuant to the pre-December 2002 BOP Six-Month Policy, Schorr
would have been eligible for transfer to a halfway house on
January 22, 2004. However, in January 2004, petitioner received a
BOP Progress Report that stated that he would be released to a
halfway house when he completed 90% of his sentence, on June 21,
2004, pursuant to the 10% Rule established in December 2002.
Thus, pursuant to the BOP's new policy, petitioner will be
eligible to spend five fewer months at a CCC than he might have
spent there under the BOP's Six-Month Policy. The 10% Rule has been challenged repeatedly in the federal
courts. District courts in the Southern District of New York and
elsewhere have reached divided results on the legality of the BOP
policy. In the Southern District of New York, at least nine
judges have held that the 10% Rule either is contrary to law, a
violation of the APA, or a violation of the Ex Post Facto Clause.
See Grimaldi v. Menifee, No. 04 Civ. 1340, 2004 WL 912099, at
*3 (S.D.N.Y. Apr. 29, 2004); Panchervikov v. Federal Bureau of
Prisons, No. 04 Civ. 2531, 2004 WL 875633, *2 (S.D.N.Y. Apr. 23,
2004); Quintero v. Menifee, 04 Civ. 1597, Slip Op. (S.D.N.Y.
Apr. 5, 2004) (cited in Panchervikov, 2004 WL 875633, at n. 2);
Crapanzano v. Menifee, No. 04 Civ. 1052, 2004 WL 736860
(S.D.N.Y. Apr. 5, 2004); Crowley v. Federal Bureau of Prisons,
No. 04 Civ. 363, 2004 WL 516210 (S.D.N.Y. Mar. 17, 2004);
DiStefano v. Federal Bureau of Prisons, No. 04 Civ. 0007, 2004
WL 396999 (S.D.N.Y. Mar. 4, 2004); Zucker v. Menifee, No. 03
Civ. 10077, 2004 WL 102779 (S.D.N.Y. Jan. 21, 2004); Cato v.
Menifee, No. 03 Civ. 5795, 2003 WL 22725524 (S.D.N.Y. Nov. 20,
2003); Greenfield v. Menifee, No. 03 Civ. 8205, 2003 WL
23181269 (S.D.N.Y. Oct. 31, 2003) (bench decision, Return Exh.
F); see also Colton v. Ashcroft, 299 F. Supp.2d 681 (E.D.Ky.
Jan 15, 2004); Monahan v. Winn, 276 F. Supp.2d 196 (D.Mass.
2003); Tipton v. Fed. Bureau of Prisons, 262 F. Supp.2d 633 (D.
Md. 2003); Iacaboni v. United States, 251 F. Supp. 1015 (D.Mass.
2003); Culter v. United States, 241 F. Supp.2d 19 (D.D.C.
At least three judges in the Southern District of New York, and
numerous other courts, have found that petitioners challenging
the 10% Rule were not entitled to relief. See e.g. Loeffler
v. Menifee, No. 04 Civ. 3610, 2004 WL 1252925, *1 (S.D.N.Y. Jun
07, 2004); Cohn v. Federal Bureau of Prisons, 302 F. Supp.2d 267,
275-76 (S.D.N.Y. 2004); Adler v. Menifee, 293 F. Supp.2d 363,
366-67 (S.D.N.Y. 2003); Caltabiano v. Menifee, No. 04 Civ.
2963, 2004 WL 1191955, at *1 (S.D.N.Y., May 27, 2004) (petitioner
lacked standing to challenge policy because the BOP's decision not to
transfer petitioner to a CCC was not based on the 10% Rule, but
rather on an "assessment of petitioner's violent history and
transitional needs"); see also Benton v. Ashcroft,
273 F. Supp.2d 1139, 1143-6 (S.D. Cal. 2003); Kennedy v. Winn, No.
03 Civ. 10568, 2003 WL 23150108, at *2-4 (D.Mass. July 9, 2003);
United States v. Kramer, No. 02 Cr. 47, 2003 WL 1964489 (N.D.
Ill. Apr. 28, 2003); United States v. Gilbride, 2003 WL 297563
(M.D. Pa. Jan. 31, 2003; United States v. James, 244 F. Supp.2d 817
(E.D. Mich. Jan. 27, 2003). The Second Circuit has not yet
resolved this split in the district courts. See U.S. v.
Arthur, 367 F.3d 119, 123 (2d Cir. 2004) (declining to exercise
jurisdiction but noting split decisions at the district court
Schorr brings this petition seeking declaratory and injunctive
relief to compel respondent Menifee to approve a transfer of
petitioner to a halfway house immediately.
A habeas corpus petition pursuant to 28 U.S.C. § 2241 is the
appropriate method for a federal prisoner to challenge the
administration of his sentence or his conditions of confinement.
See e.g. Cohn, 302 F. Supp.2d at 270; Zucker, 2004 WL
102779, at *3; Adler, 293 F. Supp.2d at 366-67. Because
petitioner seeks to challenge the conditions of his confinement,
this petition is properly brought pursuant to 28 U.S.C. § 2241.
Therefore, there is no reason for this Court to consider whether
jurisdiction is also appropriate pursuant to 28 U.S.C. § 1361,
which grants district courts "original jurisdiction [over] any
action in the nature of mandamus to compel an officer or employee
of the United States or any agency thereof to perform a duty owed
to the plaintiff." Generally, a petitioner is required to exhaust his
administrative remedies before bringing a petition for habeas
corpus pursuant to 28 U.S.C. § 2241. Cf. Guitard v. U.S. Sec'y
of Navy, 967 F.2d 737, 741 (2d Cir. 1992). However, as the U.S.
Court of Appeals for the Second Circuit points out in Arthur,
numerous courts to consider a challenge to the BOP's 10% Rule
have excused the petitioner's failure to exhaust administrative
remedies because such attempts would be futile "in light of the
BOP's determined adherence to enforcing the [10% Rule]." 367 F.3d
at 123 (collecting cases). Similarly, this Court finds that any
attempt by petitioner to challenge the BOP's determination of his
eligibility for release to a halfway house through administrative
remedies would be futile and therefore petitioner's failure to
exhaust his administrative remedies is excused.
B. Ex Post Facto Clause Violation
Petitioner contends that the agency's changed interpretation of
18 U.S.C. § 3624 violates the Ex Post Facto Clause of the
Constitution Art. I, § 9, cl. 3. The Ex Post Facto Clause
operates to bar any "enactments, which by retroactive operation,
increase the punishment for a crime after its commission."
Garner v. Jones, 529 U.S. 244, 249-50 (2000). "[T]wo critical
elements must be present for a criminal or penal law to be ex
post facto: the statute must be retrospective, and it must be
disadvantageous to the offender." Knuck v. Wainwright,
759 F.2d 856, 859 (11th Cir. 1985) (citing Weaver v. Graham,
450 U.S. 24, 29 (1981)). In this instance, the BOP 10% Rule operated to
increase the punishment for Schorr's crime, and did so
retroactively. See Panchervikov, 2004 WL 875633, at *3
(Requiring the petitioner to spend an additional four months in
prison (a penal or correctional facility) in effect increases the
punishment for the crimes he committed." (quoting Crapanzano,
2004 WL 736860, at *4)).
Respondent cites a number of cases for the principal that an ex
post facto violation must be grounded in the violation of a
"vested right," and that such a vested right does not accrue to petitioner here from some interpretive
policy of an agency. Cohn, 302 F. Supp.2d at 275. Admittedly,
"[t]here is no ex post facto violation if the law is merely
procedural, and does `not increase the punishment . . .'" Hopt
v. Utah, 110 U.S. 574, 590 (1884); see also Garner v. Jones,
529 U.S. 244, 250 (2000) ("Not every retroactive procedural
change creating a risk of affecting an inmate's terms or
conditions of confinement is prohibited.").
As the U.S. Supreme Court has recognized, it is not whether a
defendant has a "vested right" in any specific policy or
sentence, but rather the "lack of fair notice" that is critical
to relief under the Ex Post Facto Clause. Weaver v. Graham,
450 U.S. 24, 29 (1981); Lynce v. Mathis, 519 U.S. 433, (1997);
Crowley, 2004 WL 516210, at *9. Thus, the controlling inquiry
is whether retroactive application of a change in the law creates
"a sufficient risk of increasing the measure of punishment
attached to the covered crimes." Weaver, 450 U.S. at 29 (cited
in U.S. v. Kramer, 2003 WL 1964489, at *5). A changed agency
policy can violate the Ex Post Facto Clause where it has the
effect of changing substantive law. Weaver v. Graham, 450 U.S.
at 29 (1981); Crapanzano v. Menifee, 2004 WL 736860.
Several cases in this district have held that although the BOP
10% Rule affects the punishment of a crime retroactively, it is
not an ex post facto law because it is merely an interpretation
of statutory authority. Adler, 293 F. Supp.2d at 368; Cohn,
302 F. Supp.2d at 275. Those cases find support in precedent
holding that where an agency corrects an erroneous statutory
interpretation, retroactive application of that correction does
not violate the Ex Post Facto Clause. Metheny v. Hammonds,
216 F.3d 1307, 1310 (11th Cir. 2000) ("A new regulation which just
corrects an erroneous interpretation . . . by an agency of a
clear pre-existing statute does not violate the Ex Post Facto
Clause."); Smith v. Scott, 223 F.3d 1191, 1194-95 (10th
Cir. 2000) ("If the amendment was nothing more than `the correction of a misapplied existing law,' then there is
no retroactive application and the Ex Post Facto Clause is not
The respondent contends, and some courts have held, that the
BOP did correct an erroneous statutory interpretation in
promulgating the 10% Rule because a number of circuits, including
the Second Circuit, have held that CCCs are not places of
imprisonment, and therefore the plain language of
18 U.S.C. § 3621 did not authorize the BOP to designate a CCC as a place of
imprisonment. See United States v. Adler, 52 F.3d at 21,
(citing U.S.S.G. § 5C1.1(e)(2)); United States v. Serafini,
233 F.3d 758, 777 (3d Cir. 2000); United States v. Horek,
137 F.3d 1226, 1228-29 (10th Cir. 1998); United States v. Swigert,
18 F.3d 443, 445 (7th Cir. 1994); United States v. Latimer,
991 F.2d 1509, 1513 (9th Cir. 1993). While the respondent is
correct that the BOP could have considered these interpretations
in forming its policies, the fact that the BOP's 10% Rule may be
a permissible statutory interpretation does not resolve the
question of whether the change was a substantive one.
An interpretation of statutory authority purporting to clarify
or interpret the law can have substantive impact. Where an agency
alters a permissible statutory interpretation and substitutes a
new interpretation of the same statute, that action violates the
Ex Post Facto Clause if it has a retroactive and disadvantageous
effect on a prisoner. Knuck v. Wainwright, 759 F.2d 856, 858
(11th Cir. 1985) (holding that, in case of ambiguous statute,
the Florida Department of Corrections' first interpretation of
statute was reasonable and, therefore, retrospective application
of subsequent interpretation constituted an Ex Post Facto Clause
violation); Love v. Fitzharris, 460 F.2d 382 (9th Cir.
1972) vacated and remanded for dismissal as moot, 409 U.S. 1100
(1973) (cited in Crapazano v. Menifee, 2004 WL 736860) ("A new
administrative interpretation which subjects the prisoner already
sentenced to more severe punishment has the same effect as a new statute lengthening his present term . . ."); Cf. Smith
v. Scott, 223 F.3d 1191, 1194-95 (10th Cir. 2000).
The BOP's longstanding pre-2002 policy was certainly a
permissible interpretation of the BOP's statutory authority. It
had the statutory authority to continue to follow the Six-Month
Policy pursuant to section 3621, and to therefore designate a CCC
as a place of incarceration for more than 10% of a total
sentence. A significant number of district courts have confirmed
that the BOP's pre-2002 interpretation was reasonable, if not
required. See, e.g., Grimaldi, 2004 WL 912099, at *3;
Crapanzano, 2004 WL 736860; Crowley, 2004 WL 516210, at * 9;
Di Stefano, 004 WL 396999, at *6; Zucker, 2004 WL 102779, at
*6-11; Cato v. Menifee, 2003 WL 22725524, at * 4-7;
Greenfield, 03 Civ. 8205 (KMW) (Return, Exh. F).
As the Second Circuit pointed out in Arthur, "[i]t is
uncontested that the OLC Memo upset a decades-long policy
pursuant to which the BOP operated under the assumption that it
had discretion to assign federal prisoners to serve all or part
of their sentences in places other than prison." Arthur, 367
F.3d at 120-21. Because the pre-2002 BOP policy was not a clearly
erroneous application of the law, this Court joins with the
district courts that have held that the December 2002 change has
the effect of substantive law, and was not merely interpretive.
See e.g. Cato, 2003 WL 22725524; Crapanzano, 2004 WL
736860, at * 3.
C. Other Claims
Petitioner is entitled to the requested relief on the grounds
that the BOP 10% Rule violates the Ex Post Facto Clause of the
Constitution as applied to petitioner. Therefore, there is no
reason for this Court to determine whether or not that policy
violates the APA or is otherwise contrary to law. III. Conclusion
Because the application of the new BOP 10% Rule to petitioner
is a violation of the Ex Post Facto Clause of the Constitution,
the writ of habeas corpus is granted and respondent is directed
to determine whether Schoor is eligible to be designated to a CCC
pursuant to the BOP's pre-December 2002 Six-Month Policy.