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August 19, 2004.

NORMAN LEWIS, Petitioner,
FREDERICK MENIFEE, Warden FCI Otisville, Respondent.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


To the Honorable Harold Baer, Jr., United States District Judge:

Norman Lewis brings this § 2241 habeas corpus petition seeking an emergency expedited order removing him from FCI Otisville to a community confinement center ("CCC"). (Dkt. Nos. 2 & 3.) Lewis' assertion that he is entitled to this removal is based upon his challenge of the Bureau of Prison's ("BOP") new policy that prisoners may not enter a CCC until the last 10% of their sentence. Previously, an inmate was eligible for commuting confinement for the last six months of their sentence even if that was more than 10% of the term of imprisonment. Because Lewis' sentence is longer than six years and the BOP decision regarding his pre-release date is based upon other legitimate factors, he is not affected by the policy change and therefore lacks standing to bring this challenge. Accordingly, the Court should deny both his petition and request for a preliminary injunction.*fn1

  In December 2002, the BOP enacted a new policy governing the period in which a prisoner may begin serving the back end of their sentence in a CCC. "The 10% Rule reversed the long-standing BOP Six-Month Policy of sending prisoners to CCC's for up to the final six months of their sentences, regardless of the total term of imprisonment." Schorr v. Menifee, 04 Civ. 1863, 2004 WL 1320898 at *2 (S.D.N.Y. June 14, 2004). There has been much recent litigation due to the BOP's recent federal policy of designating prisoners to CCC's for no more than 10% of their sentences. See, e.g., cases cited in Catalbiano v. Menifee, 04 Civ. 2963, 2004 WL 1191955 at *1 n. 2 (S.D.N.Y. May 27, 2004). In the cases brought by prisoners who have standing to challenge the 10% Rule, this District has been split as to whether the 10% Rule is invalid. Compare, e.g., cases cited in Schorr v. Menifee, 2004 WL 1320898 at *3.

  However, in order for a prisoner to have standing to bring such a claim, he or she must be affected by the 10% rule; in other words, ten percent of the prisoner's sentence must be less than six months and the basis for a later pre-release date must be the 10% Rule. Here, Lewis was sentenced on June 16, 1992 to 180 months imprisonment. (Dkt. No. 2: Pet. Ex. 1: 6/15/04 BOP Regional Director letter.) Ten percent of Lewis' sentence is eighteen months, three times the maximum amount required for him to have standing to challenge the 10% rule. See, e.g., Sanders v. Menifee, 04 Civ. 1483, 2004 WL 1562734 at *3-4 (S.D.N.Y.July 13, 2004) (Cote, D.J.) ("Because Sanders' petition does not allege a concrete injury that is fairly traceable to the challenged action of the defendant, he lacks standing to pursue his claim for habeas relief. . . . The BOP has consistently considered inmates for a single pre-release placement that was ordinarily limited to six months under the pre-December 2002 Policy and is limited to the lesser of six months or ten percent of the inmate's term under the December 2002 Policy. Sanders remains eligible for six months of community placement."); Varona v. Menifee, 04 Civ. 1790, 2004 WL 1161168 at *2 (S.D.N.Y. May 24, 2004) (Rakoff, D.J.) ("[P]etitioner has no basis to raise such challenge, since, in his case, ten percent of petitioner's sentence is 10.8 months, i.e., more than six months. Therefore, regardless of whether the old policy or the new policy were in effect, the calculation of the maximum amount of CCC time for which petitioner would be eligible would be six months.").

  Furthermore, even if Lewis' sentence were in the range affected by the 10% Rule, the BOP explicitly stated that there were other legitimate reasons that shortened his time at a CCC:
A review of your record reveals you were sentenced on June 16, 1992, to 180-months . . . As indicated by the Warden, the Community Corrections Manager approved a placement date of October 7, 2004, due to your incident report history and bed space shortages. We find your placement date of October 7, 2004, is an appropriate exercise of discretion by the Community Corrections Manager.
(Dkt. No. 2: Pet. Ex. 1; see also A.U.S.A. Eshkenazi 8/18/2004 Letter to Court at 1 ("Simply put, the December 2002 policy played no part in the decision to place Lewis in a CCC on October 7, 2004, instead of August 5, 2004."). The fact that the BOP denied Lewis' request for a longer CCC stay for legitimate alternative reasons also demonstrates that Lewis is unaffected by the 10% Rule and thus lacks standing. See, e.g., Caltabiano v. Menifee, 04 Civ. 2963, 2004 WL 1191955 at *2 (S.D.N.Y. May 27, 2004) (Buchwald, D.J.) ("We are satisfied that the BOP decision to hold back petitioner's CCC placement until August 17, 2004, (or sixty days before his projected release date) was based only on a determination about the appropriateness of the placement in view of the BOP's assessment of petitioner's violent history and transitional needs. First, there is BOP documentation saying as much. . . . Second, if the BOP had truly employed the 10% Rule in petitioner's case, his August 17, 2004, transfer date would not have followed. Had the BOP's placement decision actually been constrained by the 10% Rule, petitioner would have been approved to begin a CCC designation on June 10, 2004 (i.e. ten percent of his sentence).").

  Accordingly, the Court should deny Lewis' petition in its entirety (and thus his preliminary injunction motion, Dkt. No. 3, also should be denied).


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Harold Baer, Jr., 500 Pearl Street, Room 2230, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Baer. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); ...

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