The opinion of the court was delivered by: SIDNEY STEIN, District Judge
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
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, ...