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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 ...

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