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United States District Court, S.D. New York

May 2, 2005.

CHAIM WIESEL, Petitioner,
FREDRICK MENIFEE, Warden in his Official capacity, Respondent.

The opinion of the court was delivered by: DEBORAH BATTS, District Judge


Petitioner Chaim Wiesel ("Petitioner"), an inmate at the Federal Prison Camp in Otisville, New York ("Otisville Camp"), petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1) declaring that the Federal Bureau of Prisons' ("BOP") policy limiting Petitioner's eligibility for community correctional center (CCC) placement consideration to the last ten percent of his twenty-four month term of imprisonment, or nine weeks, is unlawful, and (2) ordering the BOP to use its pre-December 2002 CCC-designation policy to determine his eligibility for CCC placement. For the reasons stated below, the Petition is GRANTED. I. BACKGROUND

On June 20, 2002, Petitioner was convicted in this District of conspiracy to commit mail fraud, mail fraud, conspiracy to defraud the United States Treasury, and false claims. (Petition ["Pet."] at 2; Declaration of Patrick Ward ["Ward Decl."], Ex. C (Judgment in United States v. Chaim Wiesel, 01 CR. 216 (McMahon, J.)) at 1). On February 26, 2003, Petitioner was sentenced to a term of imprisonment of 24 months, to be followed by two years' on supervised release, and was ordered to pay restitution to his victims in the amount of $19,607 as well as a special assessment of $400. (Pet. at 2; Ward Decl., Ex. C at 2-4). The BOP designated Petitioner to Otisville Camp, and Petitioner began serving his sentence there on March 1, 2004. (Ward Decl., Exs. B and D).

  Meanwhile, on December 13, 2002, after Petitioner had been found guilty but prior to his sentencing, the Office of Legal Counsel for the United States Department of Justice ("OLC") issued a memorandum advising that the BOP's longstanding practice of designating some federal inmates to CCC's for the last six months of their prison terms, even when six months was longer than 10% of their prison terms, was unlawful. (Declaration of Lawrence Fogelman ["Fogelman Decl."], Ex. D (Bureau of Prisons Program Statement, dated December 16, 1998) at 8; Pet., Ex. A (OLC December 13, 2002 Memorandum) at 1, 6). Specifically, the OLC concluded that the BOP lacked "clear general statutory authority" to make such designations. (Id. at 1). This conclusion was based on OLC's interpreting the term "imprisonment" to exclude placement in a CCC so that the authority granted the BOP under 18 U.S.C. § 3621(b) to "designate the place of [a] prisoner's imprisonment" at any time did not include the authority to place an inmate in a CCC. (Pet., Ex. A at 1, 5). In the OLC's view, the only statute giving the BOP authority to designate inmates to CCC's was 18 U.S.C. § 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% of his prison term in a setting that will prepare the prisoner for re-entry to the community, and which by no means permits the BOP to place an inmate in a CCC for six months if six months exceeds 10% of his prison term. (Id. at 6 n. 6) ("The authority conferred under section 3624(c) to transfer a prisoner to a non-prison site is clearly limited to a period `not to exceed six months, or the last 10 per centum of the term to be served,' 18 U.S.C. § 3624, and we see no basis for disregarding this time limitation.").

  On December 20, 2002, in response to the OLC memorandum, the BOP issued its own memorandum addressed to "Chief Executive Officers" announcing that "[e]ffective immediately," and "as a result of a recent legal opinion issued by the [OLC], which analyzes the Bureau's statutory authority to designate inmates to CCC's as more limited than we have previously practiced . . ., [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 Civ. 10077, 2004 WL 102779, at * 2 (S.D.N.Y. Jan. 21, 2004) (quoting the December 20, 2002 BOP Memorandum at 1-2). Thereafter, on December 30, 2002, Respondent, as Warden of the Otisville Camp, issued a memorandum to the Otisville inmates announcing that the BOP's new limitation on CCC designations had gone into effect at Otisville as of December 20, 2002. (Ex. C (Memorandum from Frederick Menifee, dated December 30, 2002) at 1).

  Under the "10% Rule" established by the BOP's December 2002 CCC designation policy, the earliest possible date on which Petitioner could be declared eligible for CCC placement would be September 18, 2005, a mere two months before his scheduled release date of November 19, 2005, while, under the pre-December 2002 policy, he would be eligible for CCC placement consideration as early as May 18, 2005, six months prior to his release date. (Pet. at 3, Ex. E). Thus, on December 9, 2004, Petitioner filed the present Petition seeking invalidation of the BOP's December 2002 CCC designation policy on grounds that: (1) the policy and the OLC opinion that spawned it constitute "ineffective interpretation" of the relevant law governing the BOP's facility designation authority; (2) the policy represents a legislative rule that should have been but was not promulgated under the "notice and comment" rule-making procedures required by the Administrative Procedure Act (APA), 5 U.S.C. § 553; and (3) application of the policy to Petitioner after he has already pled guilty would result in a retroactive adverse impact from a change in federal criminal law, which violates the ex post facto clause of the United States Constitution). (Id. at 3-5).

  By the time Petitioner filed the present Petition, however, the majority of courts in this District, including this Court, had already ruled that the December 2002 BOP policy was unlawful because it was based on an erroneous interpretation of the governing statutes, since it failed to recognize that 18 U.S.C. § 3621(b) gave the BOP discretion to place federal inmates in CCC's at any time during their prison terms. See, e.g., Grimaldi v. Menifee, No. 04 Civ. 1340, 2004 WL 912099 (S.D.N.Y. April 29, 2004) (Batts, J.); Cato v. Menifee, 03 Civ. 5795, 2003 WL 2272554 (S.D.N.Y. Nov. 20, 2003) (Chin, J.); Crowley v. Federal Bureau of Prisons, 312 F.Supp.2d 453 (S.D.N.Y. 2004) (Hellerstein, J.); Pinto v. Menifee, No. 04 Civ. 5839, 2004 WL 3019760, at * 3-5 (S.D.N.Y. Dec. 29, 2004) (Dolinger, M.J.) (collecting cases).

  In response to these decisions, on August 18, 2004, the BOP published proposed new CCC designation regulations in the Federal Register. While explicitly recognizing its discretion under § 3621(b) to designate federal inmates to CCC's for all or any part of their prison terms, the BOP nevertheless proposed "to exercise its discretion categorically to limit inmates' community confinement to the last ten percent of the prison sentence being served, not to exceed six months." 69 Fed.Reg. 51213 (Aug. 18, 2004). In proposing this renewed categorical application of the "10% Rule" for CCC designations, the BOP claimed to have "carefully considered all of [§ 3621(b)'s] statutorily-specified factors" and "additional considerations" that are supposed to guide BOP facility designation decisions. Specifically, the BOP contended that the proposed rule was consistent with the first § 3621(b) factor, facility resources, because CCC's are "particularly well-suited as placement options for the final portion of offenders' prison terms," with the fifth § 3621(b) factor, consideration of "any pertinent policy statement issued by the Sentencing Commission," and with § 3621(b)'s mandate that the BOP "not show favoritism in making designation decisions." Id. at 51214. In addition, the BOP asserted that its "categorical exercise of discretion" in designating inmates to CCC's would be consistent with Supreme Court precedent, and it promised to "continue to make a case-by-case determination of the particular [non-CCC] facility to which it will designate each individual inmate." Id. at 51213 (citing Lopez v. Davis, 531 U.S. 227, 243-33 (2001); and American Hospital Ass'n v. NLRB, 499 U.S. 606, 612-613 (1991)).

  After soliciting and addressing twenty-six public comments on its proposed CCC rules, the BOP published its final rules on January 10, 2005, see 70 Fed.Reg. 1659, 1663 (Jan. 10, 2005), after the present Petition had already been filed. The final CCC designation regulations, which are codified in Title 28, Part 570 of the Code of Federal Regulations and became effective on February 14, 2005, provide:

§ 570.20 What is the purpose of this subpart?
(a) This subpart provides the Bureau of Prisons' (Bureau) categorical exercise of discretion for designating inmates to community confinement only as part of prerelease custody and programming which will afford the prisoner a reasonable opportunity to adjust to and prepare for re-entry into the community . . .
§ 570.21 When will the Bureau designate inmates to community confinement?
(a) The bureau will designate inmates to community confinement only as part of pre-release custody and programming, during the last ten percent of the prison sentence being served, not to exceed six months. (b) We may exceed these time frames only when specific Bureau programs allow greater periods of community confinement as provided by separate statutory authority (for example, residential substance abuse treatment program (18 U.S.C. § 3621(e)(2)(A)), or shock incarceration program (18 U.S.C. § 4046(c)).
28 C.F.R. §§ 570.20, 570.21.

  In light of the new BOP regulations, Respondent, in his response to the present Petition, informed the Court that the determination of Petitioner's CCC placement eligibility will be made under the new CCC designation rules rather than the December 2002 policy, and that such determination will be made prior to May 19, 2005, the date six months before his expected release date. (Respondent's Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus ["Resp. Mem."] at 8). Petitioner in turn contends in his Traverse that the grounds for § 2241 habeas relief asserted in his original Petition are equally applicable to the February 2005 BOP CCC designation regulations, and he therefore asks the Court to declare these new rules unlawful and require the Respondent to evaluate his CCC placement eligibility under the pre-December 2002 policy. (Traverse at 7). II. DISCUSSION

  As an initial matter, Respondent argues that Petitioner's Petition should be dismissed for lack of standing and mootness because the BOP has not yet nor will it ever apply its December 2002 CCC designation policy to Petitioner and the December 2002 policy has been superseded by the February 2005 regulations. (Resp. Mem. at 9-12). While Respondent is correct that Petitioner cannot challenge a regulation that is no longer in effect and that will therefore never be applied to him, Petitioner has made it clear that he wishes to challenge the new BOP CCC designation policy as well, which Respondent has acknowledged will be applied to Petitioner and thus determine if and when he becomes eligible for CCC placement. Thus, in line with its obligation to construe pro se habeas petitions liberally, see Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998), the Court construes Petitioner's Traverse as a request for leave to amend his Petition to include a challenge to the BOP's February 2005 CCC designation rules, and such request is hereby granted. See Fed.R.Civ.P. 15(a); 28 U.S.C. § 2242. Accordingly, the Court will address on the merits all three of Petitioner's asserted grounds for habeas relief from the BOP's February 2005 CCC designation rules. A. Administrative Procedure Act

  Because, in contrast to the December 2002 Policy, the February 2005 CCC designation rules were promulgated by the BOP through the proper notice and comment rulemaking procedure, Petitioner's argument that the enactment of these rules violates § 553 of the APA is without merit.

  B. The BOP's CCC Designation Authority under § 3621(b)

  Petitioner next argues that, like the December 2002 policy, the February 2005 CCC designation rules are based the BOP's incorrect reading of 18 U.S.C. § 3621(b). (Traverse at 2-6). Because Petitioner's claim requires the Court to review the BOP's interpretation of a statute that it is charged with administering, see 18 U.S.C. § 3621(b) ("The Bureau of Prisons shall designate the place of the prisoner's imprisonment."), the Court must use the two-step framework for statutory interpretation established by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council. Inc., 476 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

  Under the so-called "Chevron two-step," the reviewing court must first look to the language of the statute itself to determine "whether Congress has directly spoken to the precise question at issue," i.e., the statutory language is clear and unambiguous, and if so, "that is the end of the matter." Chevron, 467 U.S. at 842-43. However, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. In determining whether the agency's construction is permissible, "[t]he court need not conclude that the agency construction was the only one it permissibly could have adopted . . . or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Id. n. 11. Rather, "substantial deference is accorded to the interpretation of the authorizing statute by the agency authorized with administering it" so that the agency's statutory construction "may not be disturbed as an abuse of discretion if it reflects a plausible construction of the plain language of the statute and does not otherwise conflict with Congress' expressed intent." Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (citing Chevron, 467 U.S. at 844).*fn1

  Petitioner's statutory interpretation argument has two prongs. First, he argues that although the new BOP CCC designation regulations correctly acknowledge that the BOP has discretion under § 3621(b) to designate federal inmates to CCC's at any point during their sentences, the BOP's decision to exercise this discretion categorically by including a "10% Rule" in the new regulations is not authorized by the language of the statute. (Traverse at 3-4). However, § 3621(b) itself is silent on the issue of whether the BOP must make all facility designation decisions on a case-by-case basis or may instead exercise its wide designation discretion categorically.

  Meanwhile, the Supreme Court has already upheld the BOP's categorical exercise of discretion conferred upon it by another subsection of § 3621. In Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001), the Court upheld a BOP regulation categorically excluding inmates convicted of offenses involving a firearm from the early release eligibility for successful substance abuse treatment program completion provided for in 18 U.S.C. § 3621(e)(2)(B). After noting that § 3621(e)(2)(B), which gives the BOP discretion to reduce the sentences of non-violent offenders who successfully complete a residential substance abuse treatment program, is silent about how the BOP can exercise this discretion, the Court held that the categorical exclusion established by the BOP was a "reasonable" interpretation of § 3621(e)(2)(B). The Court reasoned that "even if a statutory scheme requires individualized determinations . . . the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority." 531 U.S. at 242-44 (quoting American Hospital Assn. v. NLRB, 499 U.S. 606, 612, 11 S.Ct. 1539, 113 L.Ed.2d 675 (1991)).

  The reasoning in Lopez is equally applicable to the present case. As discussed above, § 3621(b), like § 3621(e)(2), grants the BOP wide discretion without explicitly prohibiting such discretion from being exercised categorically. Thus, the BOP's creation of a categorical CCC designation rule is a permissible interpretation of the discretion afforded to it by § 3621(b). See Drew v. Menifee, No. 04 Civ. 9944, 2005 WL 525449, at *3 (S.D.N.Y. Mar. 4, 2005) (recognizing BOP's authority under § 3621(b) to "exercise its discretion in a categorical manner through its rule-making power"); Yip v. Federal Bureau of Prisons, No. 05 CV 1314, 2005 WL 737567, at * 3 (E.D.N.Y. Apr. 1, 2005) (holding that § 3621(b) authorized the BOP to create a "categorical rule" for CCC transfers).

  Petitioner also contends that regardless of whether the BOP can exercise its designation discretion in a categorical manner, it must consider all five factors listed in § 3621(b) when making CCC designation decisions, which it did not do when promulgating the February 2005 regulations. (Traverse at 4-5). Petitioner is correct that the BOP did not consider all five of the factors. While the commentary accompanying the proposed version of the regulations asserts generally that the BOP "carefully considered all of the statutorily-specified factors," 69 Fed.Reg. at 51,214, the commentaries for both the proposed and final regulations specifically discuss only two factors, (1) facility resources, and (5) policy statements issued by the Sentencing Commission, 69 Fed.Reg. at 51,214; 70 Fed.Reg. 1660, but make no mention of (2) the nature and circumstances of the offense, (3) the history and characteristics of the prisoner, or (4) recommendations of the sentencing court. Nevertheless, Respondent argues, the February 2005 regulations do not violate § 3621(b) because the aforementioned statutory factors are not mandatory. (Resp. Mem. at 17-20).

  Applying the Chevron framework, the Court agrees with Respondent. To begin with, the language of § 3621(b) itself clearly establishes that the aforementioned factors are not mandatory. While the statute states that the BOP "shall designate the place of [every federal] prisoner's imprisonment," it goes on to state that:

The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau . . . that the Bureau determines to be appropriate, considering —
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence — . . .
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a) of title 28.
18 U.S.C. § 3621(b) (emphasis added). "Congress' use of the permissive `may'" to define the BOP's designation authority is inconsistent with the imposition of "discretionless obligations." Lopez, 531 U.S. at 241. Indeed, as the Lopez Court pointed out, "elsewhere in § 3621, Congress used `shall' to impose discretionless obligations, including [the first sentence of] § 3621(b) ('The [BOP] shall designate the place of the prisoner's imprisonment')" and the sentence following the listing of the aforementioned five factors, which specifies that "[I]n designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status." Id. In contrast, the clause beginning with "considering" and listing the five factors is not preceded by a "shall," and the Court refuses to read such term into the text of § 3621(b), especially when doing so would then render the word "may" meaningless. See Perry v. Downing, 95 F.3d 231, 238 (2d Cir. 1996) ("statutes must be interpreted to give meaning to all of their terms") (citing United States v. LaPorta, 46 F.3d 152, 156 (2d Cir. 1994)).

  Moreover, even assuming arguendo that the statutory language itself is ambiguous, the Senate Judiciary Committee Report accompanying the enactment of § 3621 emphasized that:

The Committee, by listing facts for the Bureau to consider in determining the appropriateness or suitability of any available, facility, does not intend to restrict or limit the Bureau in the exercise of its existing discretion so long as the facility meets the minimum standards of health and habitability of the Bureau, but intends to set forth the appropriate factors that the Bureau should consider in making the designations.
S.Rep. No. 98-225, reprinted in 1984 U.S.S.C.A.N. 3182, 3325 (emphasis added). This legislative history in turn demonstrates that the BOP's treatment of the above-mentioned factors as discretionary is also consistent with Congress's intent in enacting § 3621(b), see De Los Santos v. INS, 690 F.2d 56, 59 (2d Cir. 1982) (holding that the legislative history of the Immigration and Nationality Act "supports the view that INS' interpretation is not inconsistent with Congress' intent"). Therefore, under Chevron, the BOP's 2005 CCC designation rules cannot be invalidated by this Court. See Sullivan, 500 U.S. at 184 (holding that, under Chevron, an agency's construction of statute that "reflects a plausible construction of the plain language of the statute and does not otherwise conflict with Congress' express consent . . . may not be disturbed").

  Petitioner meanwhile relies on a recent decision from this district, Drew v. Menifee, to support the proposition that the BOP's view of the § 3621(b) factors as discretionary is inconsistent with Congress' intent. (Traverse at 6). The court in Drew cited to an earlier section from the same Senate Judiciary Committee Report, which states:

[I]n determining the availability or suitability of the facility selected, the Bureau is specifically required to consider such factors as the resources of the facility considered, the nature and circumstances of the offense, the history and characteristics of the prisoner, the statements made by the sentencing court . . ., and any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2). After considering these factors, the Bureau of Prisons may designate the place of imprisonment in an appropriate type of facility . . .
S.Rep. No. 98-225, reprinted in 1984 U.S.S.C.A.N. 3182, 3324-25. Based on this passage, the Drew court determined that it was Congress' intent that the BOP "must consider" the § 3621(b) factors when making its facility designation decisions. Drew, 2005 WL 525449, at * 4.

  This Court does not agree with the Drew holding. For one thing, the language of the passage from the Senate Report cited in Drew, specifically the requirement that "the Bureau is "required to consider such factors as the resources of the facility" etc. (emphasis added), strongly suggests that the listed factors were merely provided as examples of possible considerations for the BOP to weigh and that the BOP was in no way required to consider them all. Further, even if the cited passage states that the BOP must consider all of the listed factors, such requirement conflicts with the Report's later statement that the Committee did "not intend to limit the Bureau in the exercise of its existing discretion so long as the facility meets the minimum standards of health and habitability," thus rendering the Committee Report "ambiguous and unenlightening" in which case the Court must "defer to the expertise of the agency." Rust, 500 U.S. at 186.

  In sum, because the BOP's February 2005 CCC designation regulations constitute a permissible interpretation of 18 U.S.C. § 3621(b), they are a valid exercise of the BOP's discretion under that statute.

  C. Ex Post Facto Clause

  Finally, Petitioner claims that applying the February 2005 CCC designation rules to him would violate the Ex Post Facto Clause of the United States Constitution, Art. I, § 9, cl. 3. (Pet. at 3; Traverse at 6). The Ex Post Facto Clause bars any "enactments, which by retroactive operation, increase the punishment for a crime after its commission." Garner v. Jones, 529 U.S. 244, 249-50, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). "[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). While "[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, 4 S.Ct. 202, 28 L.Ed. 262 (1884), an administrative agency rule can implicate the Ex Post Facto Clause if it has "the effect of substantive law and is not merely interpretive." Crapanzano v. Menifee, No. 04 Civ. 1052, 2004 WL 736860, at *3 (S.D.N.Y. Apr. 5, 2004); Schorr v. Menifee, No. 04 Civ. 1863, 2004 WL 1320898, at *5 (S.D.N.Y. June 14, 2004) (same) (citing Weaver); Knuck v. Wainwright, 759 F.2d 856, 858 (11th Cir. 1985) (holding that Florida Department of Corrections' retrospective application of its new interpretation of a statute when original interpretation was also reasonable constituted an Ex Post Facto Clause violation).

  The BOP's planned application of its February 2005 CCC designation regulations to Petitioner would clearly be retrospective because when he was convicted in June 2002 of the crime for which he is now imprisoned, the "10% Rule" established by these new regulations was not yet in effect.*fn2 However, Respondent argues that the second ex post facto element is not satisfied because (1) the 2005 regulations do not substantively change existing law but are merely an exercise of the BOP's statutory discretion under § 3621(b), (2) federal prisoners have never had a right under § 3621(b) to determine the location of their imprisonment, and (3) the new regulations "do not increase the penalty imposed on [Petitioner] as punishment for the crime." (Resp. Mem. at 30-31).

  Respondent's arguments are unavailing. As the Supreme Court made clear in Weaver, "a law need not impair a `vested right' to violate the ex post facto prohibition." 450 U.S. at 29; see also Crowley v. Federal Bureau of Prisons, 312 F.Supp.2d 453, 462-63 (S.D.N.Y. 2004) (quoting Weaver and invalidating BOP's December 2002 CCC designation policy on ex post facto grounds); Schorr, 2004 WL 1320898, at *5-6 (same). Moreover, the majority of courts in this district that have squarely addressed ex post facto challenges to the BOP's December 2002 CCC policy have held that it constituted a substantive change in the law and effectively increased the punishment for federal prisoners by increasing the amount of time they had to spend in more restrictive penal institutions. See Cato v. Menifee, No. 03 Civ. 5795, 2003 WL 22725524, at *5-6 n. 2 (S.D.N.Y. Nov. 20, 2003) (Chin, J.) (holding that "four months less of community confinement . . . still would be a measurable, adverse impact"); Crowley, 312 F.Supp.2d at 463 (Hellerstein, J.) (holding that BOP's implementation of the December 2002 policy "disadvantaged the offender affected by it by increasing the punishment for the crime") (citation and internal quotations omitted); Crapanzano, 2004 WL 736860, at *3 (Scheindlin, J.) ("the new policy is substantive") (citing Cato); Panchernikov v. Federal Bureau of Prisons, No. 04 Civ. 2531, 2004 WL 875633, at *3 (S.D.N.Y. Apr. 23, 2004) (Berman, J.) ("The 10% Rule disadvantages the Petitioner because it reduces the time he can spend in a CCC by at least four months."); Schorr, 2004 WL 1320898, at * 6 (Stein, J.) (holding that "the December 2002 change has the effect of substantive law, and was not merely interpretive") (citing Cato and Crapanzano); but see Adler v. Menifee, 293 F.Supp.2d 363, 368 (S.D.N.Y. 2003) (Brieant, J.) (holding that December 2002 policy was simply a "correction of a mistake originally made in applying the controlling language of § 3624(c)" and thus did not violate the Ex Post Facto Clause); Cohn v. Federal Bureau of Prisons, 302 F.Supp.2d 267, 275 (S.D.N.Y. 2004) (Pauley, J.) (same). This Court in turn sees no material distinction between the December 2002 Policy and the February 2005 regulations since, under either, Petitioner's eligibility for CCC consideration would be delayed by five months.

  Accordingly, the Court finds that while, as a general matter, the BOP's February 2005 CCC designation regulations are a lawful exercise of the BOP's authority under 18 U.S.C. § 3621(b), their application to Petitioner is impermissible under the Ex Post Facto Clause. See Crapanzano, 2004 WL 736860, at *4 (finding December 2002 policy otherwise valid but holding that its application to inmate sentenced prior to December 20, 2002 violated the Ex Post Facto Clause).


  Because the Court finds that the application of the BOP's February 2005 CCC designation rules to Petitioner would violate the Ex Post Facto Clause, the BOP must apply its pre-December 2002 CCC designation policy to Petitioner. See Cato, 2003 WL 2275524, at *7 (granting § 2241 habeas petition and then ordering BOP to apply pre-December 2002 policy to petitioner); Crapanzano, 2004 WL 736860, at *4 (same). However, under the pre-December 2002 policy, the BOP is only obligated to consider an inmate for CCC designation when he reaches the final six months of his prison term, nothing more. As discussed above, BOP's authority to designate inmates to CCC's prior to the final 10% of their prison terms comes from 18 U.S.C. § 3621(b), which specifies that such designations are purely discretionary. See 18 U.S.C. § 3621(b) ("The Bureau may, at any time . . . direct the transfer of a prisoner from one correctional facility to another) (emphasis added); see also Greenfield v. Menifee, 03 Civ. 8205, Transcript of Bench Opinion, at 24 (S.D.N.Y. Oct. 30, 2003) (Wood, J.) (noting that "the decision to transfer a prisoner to a CCC prior to the six-month/10 percent date is purely discretionary").

  Indeed, a federal inmate does "not have a right to CCC placement prior to the six month/10 percent date," but instead "has only a qualified right to have the BOP start to consider whether he should be transferred to a CCC." Greenfield, Bench Op., at 24. Therefore, this Court does not have the authority to order the BOP to designate an inmate to a CCC prior to the last 10% of his prison term. See Distefano v. BOP, No. 04 Civ. 007 (RWS), 2004 WL 396999, at *6 (S.D.N.Y. Mar. 4, 2004) (specifying that its ruling requiring the BOP to apply its pre-December 2002 CCC designation policy "does not require the Bureau to grant petitioner's request for [CCC] designation, but only to give that request full and fair consideration") (citing McCarthy v. Doe, 146 F.3d 118, 123 (2d Cir. 1998). Instead, Respondent must only "act promptly and in good faith to consider [Petitioner] for placement in a CCC consistent with the BOP policy and practice in place prior to December 20, 2002." See Distefano, 2004 WL 396999, at *6; Zucker v. Menifee, No. 03 Civ. 10077, 2004 WL 102779, at *11 (S.D.N.Y. Jan. 21, 2004). This simply means that Respondent cannot automatically limit Petitioner's CCC eligibility to the last 10% of his Prison term, as provided for in the February 2005 CCC designation rules. On the other hand, if, using the pre-December 2002 CCC designation policy, Respondent determines nevertheless that Petitioner is only eligible for placement in a CCC for the final nine weeks of his prison term, and explains how it reached that conclusion in good faith, the Court will not disturb that decision.


  For the foregoing reasons, Petitioner's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is GRANTED. No later than May 19, 2005, Respondent shall determine Petitioner's eligibility for CCC placement pursuant to the BOP's pre-December 2002 CCC designation policy, and shall submit to the Court a detailed written explanation of the procedure used and the reasons why the particular determination was reached. After reviewing Respondent's submission, the Court will determine what, if any further relief is warranted.


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