The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District
Gene Terry, a federal prisoner, petitions pro se for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, injunctive relief
pursuant to Fed.R. Civ. P. 65(b), and a writ of mandamus
pursuant to 28 U.S.C. § 1361, claiming that he is entitled to
have the Federal Bureau of Prisons ("BOP") determine his
eligibility for transfer to a Community Corrections Center
("CCC").*fn1 He challenges the BOP's current policy,
dictated by the Department of Justice in December 2002, that to
comply with 18 U.S.C. § 3264(c), a federal prisoner may only be
transferred to a CCC for a period of time equal to the last 10
percent of his sentence, not to exceed six months. The prior BOP
policy allowed transfer to a CCC for a period longer than the
last ten percent of a prison term, up to a maximum of six months.
(Bureau of Prisons, Program Statement 7310.04, December 16, 1998
(Ex. D to Declaration of Allison Penn ("Penn Decl.") at 8))
Petitioner asks this court to "compel the lawful exercise of
statutory discretion [by the BOP] in the designation of
petitioner's place of confinement," consistent with the BOP's preexisting policy.
(Pet'r's Mot. for a T.R.O. and/or Prelim. Inj. at 1) For the
reasons set forth below, the petition is granted.
The BOP changed its policy regarding CCC designations in
response to a December 13, 2002 Memorandum Opinion from the
Department of Justice Office of Legal Counsel ("OLC"), which
declared unlawful the BOP's prior practice of making all federal
prisoners eligible for placement in a CCC for as much as the last
six months of their sentence, regardless of the total length of
the sentence. Numerous decisions in this District and others have
described the OLC's opinion, and only a brief overview is
The OLC opined that the BOP's discretion is limited to placing
prisoners in CCC's to the lesser of the last six months or 10
percent of their prison terms. (Mem. Op. Off. Legal Counsel,
"Bureau of Prisons Practice of Placing in Community Confinement
Certain Offenders Who Have Received Sentences of Imprisonment,"
December 13, 2002 ("OLC Memo"), Ex. A to Declaration of Allison
Penn ("Penn Decl.") at 5) Specifically, the OLC concluded that
the BOP lacked "clear general statutory authority" either to
place an offender in a CCC at the outset of his sentence or to transfer him from "a place of imprisonment" to
a CCC. (Id. at 1, 5) Although the OLC acknowledged that Section
3621(b) gives the BOP the authority to choose a prisoner's place
of imprisonment generally, it concluded that confinement in CCC's
does not constitute "imprisonment." (Id. at 5) Hence, according
to the OLC, the authority granted to the BOP under Section
3621(b) to "designate the place of [a] prisoner's imprisonment"
does not include the authority to place a prisoner in a CCC.
The OLC concluded that the only statute giving the BOP any
authority to transfer inmates to CCC's is Section 3624(c), which
mandates that the BOP "shall assure, to the extent practicable,"
that a federal prisoner spend the lesser of six months or the
last 10 percent of his prison term "under conditions that will
afford the prisoner a reasonable opportunity to adjust to and
prepare for the prisoner's re-entry into the community,"
including "home confinement," 18 U.S.C. § 3624(c). (OLC Memo at 5
and n. 6)
On December 20, 2002, the BOP issued its own memorandum to all
BOP wardens announcing that "effective immediately" and as a
result of the OLC memorandum, "[p]re-release programming CCC
designations are limited in duration to the last 10% of the
prison sentence, not to exceed six months." Zucker v.
Menifee, No. 03-10077, 2004 WL 102779, at *2 (S.D.N.Y. Jan. 21,
2004) (quoting the December 20, 2002 BOP memorandum ("BOP memo")). On
December 30, 2002, respondent issued a memorandum to the inmates
of the Federal Correctional Institution in Otisville, New York,
detailing the BOP's new policy on CCC designations and announcing
that it had gone into effect at Otisville as of December 20,
2002. (Fredrick Menifee, Warden of FCI-Otisville, "Community
Corrections Center (CCC) Halfway House Changes," December 30,
2002 (Ex. C to Penn Decl.))
Terry was convicted, on his own guilty plea, of violating
various conditions of supervised release. (Ex. C to Declaration
of Patrick Ward ("Ward Decl.")) On October 29, 2003, he began
serving an aggregate prison sentence of 20 months and 117 days at
the Federal Correctional Institution in Otisville, New York.
(Ward Decl. ¶ 9) His projected release date, which takes into
account credit for Good Conduct Time, is March 24, 2005. (Id.;
Ex. B to Ward Decl.)
Under the BOP's current policy, Terry will not be eligible for
transfer to a CCC until January 21, 2005. (Ex. A to Ward Decl.)
Under the BOP's pre-December 2002 policy, Terry would have been
eligible for placement in a CCC as early as September 21, 2004.
(Pet. for Writ of Habeas Corpus Pursuant to Title
28 U.S.C. § 2241 ("Habeas Pet."))
On April 28, 2004, Terry filed with the BOP a "Request for Administrative Remedy," requesting six months' placement in a
CCC, as opposed to the two months he had been granted by the BOP.
(Ex. H to Habeas Pet.) On May 7, Warden Menifee denied the
request, citing the BOP's new policy and the OLC memo. (Ex. G to
Habeas Pet.) On May 21, 2004, Terry filed the present petition.
This court has subject matter jurisdiction pursuant to
28 U.S.C. §§ 2241 and 1361. See, e.g., Loeffler v. Menifee,
326 F. Supp.2d 454, 456 (S.D.N.Y. 2004). Although the government
does not raise Terry's failure to exhaust his administrative
remedies as a ground for dismissal under Section 2241, I excuse
Terry's failure to appeal his case further to the BOP Regional
Office and General Counsel on the grounds of futility and
irreparable injury. See Guitard v. United States Sec'y of
Navy, 967 F.2d 737, 741 (2d Cir. 1991) (citing Von Hoffburg v.
Alexander, 615 F.2d 633, 638 (5th Cir. 1980)) (failure to
exhaust may be excused when "irreparable injury may occur without
immediate judicial relief" or "administrative appeal would be
`futile'"); Zucker v. Menifee, No. 03-10077, 2004 WL 102779,
at *4 (S.D.N.Y. Jan. 21, 2004) ("[G]iven the subordinate relation
of the highest level of administrative appeal [, the BOP General
Counsel,] to the source of the interpretation at issue in this
case [, the Attorney General], further pursuit of remedies within the BOP would ...