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PIMENTEL v. GONZALEZ

May 3, 2005.

ALFONSO PIMENTEL, Petitioner,
v.
ALBERTO GONZALEZ, Attorney General of the United States, et al., Respondents.



The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge

MEMORANDUM & ORDER

Pro se petitioner Alfonso Pimentel brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, contesting the Bureau of Prisons ("BOP") policy limiting prisoner placement in a Community Correction Center ("CCC") to the lesser of six months or the last ten percent of a prisoner's sentence. Pimentel, who filed the instant petition on February 25, 2005, argues that he became eligible for CCC placement as of March 30, 2005 — six month prior to his release date — pursuant to BOP's pre-December 2002 policy, which routinely placed prisoners in a CCC for the last six months of their sentence regardless of whether six months exceeded ten percent of their total sentence.*fn1 Following in the footsteps of previous inmate litigants, many of whom were successful in their efforts, Pimentel argues that the CCC policy limiting placement to the last ten percent of an offender's sentence is invalid because it was adopted in violation of the Administrative Procedures Act ("APA"), is based on erroneous statutory interpretation, violates the Ex Post Facto clause, and violates his due process rights.

Apparently unbeknownst to Pimentel, BOP promulgated a new rule under the APA's notice-and-comment process which became effective on February 14, 2005 (the "February 2005 Rule"), shortly before Pimentel filed the instant petition and prior to the date Pimentel contends he is eligible for CCC placement. The February 2005 Rule continues to limit CCC placement to the last ten percent of a prisoner's sentence, but in response to numerous court opinions, provides an alternative legal basis for the BOP's authority to do so, which BOP asserts remedies any potential legal infirmities with the ten percent policy. BOP argues that several of Pimentel's claims are now moot, that the February 2005 Rule is a correct interpretation of BOP's statutory authority, and that Pimentel's challenge may only be brought under the APA, and not as a habeas petition, because it challenges a condition of confinement, and not the fact or duration of custody. For the reasons set forth below, the petition for a writ of habeas corpus is GRANTED.

  I. THE HISTORY OF BOP'S CCC POLICY

  Pimentel's claims arise from a change in BOP's long-standing interpretation of 18 U.S.C. §§ 3621(b) and 3624(c). Prior to December 2002, BOP interpreted these statutes to allow inmates to serve any or all of their terms of imprisonment in CCCs. In accordance with this interpretation, BOP's usual practice was to consider prisoners for placement in CCCs for as much as the last six months of their sentences, even if this occurred before the prisoner's ten percent date. See Zucker v. Menifee, No. 03 Civ. 10077, 2004 WL 102779, at *2 (S.D.N.Y. Jan. 21, 2004).

  On December 13, 2002, the Department of Justice's Office of Legal Counsel ("OLC") issued a memorandum concluding that BOP could not, under 18 U.S.C. 3621(b), generally designate inmates to serve terms of imprisonment in CCCs. Community Confinement, Final Rule, 70 Fed. Reg. 1659, 1659 (Jan. 10, 2005) (to be codified 28 C.F.R. pt. 570). The OLC opined that an inmate could be designated to a CCC only in connection with pre-release programming during the last ten percent of the prison sentence served, not to exceed six months. Id. Effective December 20, 2002 (hereinafter "the December 2002 Policy"), BOP changed its CCC designation procedures as set forth in the OLC memorandum. Id.

  The December 2002 Policy spawned numerous legal challenges from inmates who previously would have been eligible for CCC placement at any time during their incarceration, including the last six months. See Pinto v. Menifee, No. 04 Civ. 5839, 2004 WL 3019760 (S.D.N.Y. Dec. 29, 2004) (collecting cases). The two circuit courts to address the merits of BOP's change in policy both invalidated the December 2002 Policy on the grounds that it contravened the plain meaning of Section 3621(b). See Goldings v. Winn, 383 F.3d 17, 23-27 (1st Cir. 2004); Elwood v. Jeter, 386 F.3d 842, 846-47 (8th Cir. 2004). As held by both of these courts, Section 3624(c) only limits the affirmative obligation of BOP to assure that a prisoner spends the last part of his sentence under pre-release conditions but does not limit the agency's discretionary authority to place a prisoner in a CCC at any other time during the prisoner's sentence.*fn2 Goldings, 383 F.3d at 26; Elwood, 386 F.3d at 846-47. Thus, Section 3624(c) places a six-month cap on the period of time for which BOP must designate an offender to a less restrictive facility, as opposed to limiting the period of time for which BOP may designate an offender to a CCC.

  Although the Second Circuit has not ruled on the validity of the December 2002 Policy, numerous district courts within the Eastern and Southern Districts of New York have similarly determined that the December 2002 Policy was unlawful, with several courts also rejecting the policy on Ex Post Facto and APA grounds. See e.g., Pinto, 2004 WL 3019760 (Dolinger, J.) (rejecting policy on statutory and APA grounds) (collecting cases); Crowley v. Fed. Bureau of Prisons, 312 F.Supp.2d 453 (S.D.N.Y. 2004) (Hellerstein, J.) (rejecting policy on statutory, APA, and Ex Post Facto grounds); Solomon v. Zenk, No. 04 Civ. 2214, 2004 WL 2370651 (E.D.N.Y. Oct. 22, 2004) (Weinstein, J.) (policy contrary to plain meaning of section 3621(b) and section 3624(c) as well as sound public policy); Grimaldi v. Menifee, No. 04 Civ. 1340, 2004 WL 912099 (S.D.N.Y. Apr. 29, 2004) (Batts, J.) (rejecting statutory interpretation underlying December 2002 policy); Schoenfeld v. Menifee, No. 04 Civ. 3551, 2004 WL 1516797 (S.D.N.Y. July 7, 2004) (Buchwald, J.) (December 2002 policy incompatible with section 3621(b)).*fn3 But see Loeffler v. Menifee, 326 F.Supp.2d 454 (S.D.N.Y. 2004) (Castel, J.) (upholding policy); Cohn v. Federal Bureau of Prisons, 302 F.Supp.2d 267 (S.D.N.Y. 2004) (Pauley, J.) (same).

  On August 18, 2004, BOP proposed a rule under the APA's notice-and-comment procedure that purported to remedy the infirmities found by those courts that rejected the December 2002 Policy. Community Confinement, Proposed Rule, 69 Fed. Reg. 51213 (Aug. 18, 2004) (to be codified 28 C.F.R. Part 570). The effect of the proposed rule was identical to the December 2002 Policy in that it limited BOP's ability to designate inmates to community confinement to the last ten percent of the prison sentence being served, not to exceed six months. However, in response to the findings of various courts that BOP has discretion under Section 3621(b) to place offenders to a term of imprisonment in CCCs prior to the time set forth in Section 3624(c), BOP 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." Id. As explained by BOP in information supplementing the proposed rule, "[t]his categorical exercise of discretion is permissible based on the Supreme Court's recognition that, even when a statutory scheme requires individualized determinations, the decisionmaker has authority to rely on rulemaking to resolve certain issues of general applicability (unless Congress clearly expresses an intent to withhold that authority)." Id. (citing Lopez v. Davis, 531 U.S. 227, 243-44 (2001)). Thus, where BOP had previously reasoned that it did not have the discretion to place an inmate in a CCC, BOP now acknowledged that it had this discretion, but that it categorically determined that its discretion would not be exercised. The proposed rule became effective on February 14, 2005 ("February 2005 Rule") following BOP's response to public comments. Community Confinement, Final Rule, 70 Fed. Reg. 1659 (Jan. 10, 2005) (to be codified 28 C.F.R. Part 570).*fn4 BOP's efforts to remedy the infirmities in the December 2002 Policy by promulgating a rule declaring a categorical exercise of discretion with respect to CCC placement has thus far met with mixed success. To date, one district court has upheld the February 2005 Rule and three district courts have determined that the Rule is invalid. Compare Yip v. Federal Bureau of Prisons, No. 05 Civ. 1314, 2005 WL 737567, ___ F.Supp.2d ___ (E.D.N.Y. Apr. 1, 2005) (Gershon, J.) (upholding BOP's authority to categorically exercise its discretion concerning CCC transfer) with Drew v. Menifee, No. 04 Civ. 9944, 2005 WL 525449 (S.D.N.Y. Mar. 4, 2005) (Pitman, J.) (February 2005 Rule invalid); United States v. Paige, Nos. CR 04-007, CV 04-247, 2005 WL 949317, ___ F.Supp.2d ___ (D.Mt. Apr. 22, 2005) (same); Cook v. Gonzalez, No. 05 Civ. 09, 2005 WL 773956 (D.Or. Apr. 5, 2005) (same).

  II. DISCUSSION

  A. Jurisdiction and the Exhaustion of Remedies

  Relying on the recent Seventh Circuit decision Richardson v. Scibana, 387 F.3d 602 (7th Cir. 2004), the government argues that Pimentel's action can only be brought as a civil action under the APA because Pimentel is not challenging either the fact or the duration of his confinement. Because the APA contains a statutory exhaustion requirement which, unlike an action brought under Section 2241, may not be excused on futility grounds, the government subsequently argues that Pimentel's claims must be dismissed for his failure to exhaust his administrative remedies.

  In Richmond, the Court of Appeals for the Seventh Circuit held that a prisoner may not seek review of the December 2002 Policy on CCC placement by way of a petition for habeas corpus under 28 U.S.C. § 2241. Instead, a petitioner must proceed by means of an ordinary "civil suit" subject to requirements such as "payment of the full docket fee [and] screening through [use] of the three-strikes rule." Richmond, 387 F.3d at 606. Analogizing to actions challenging parole decisions, the court noted that "a prisoner claiming release on parole must use § 2241 (or § 2254 for a state prisoner); but a prisoner claiming that parole officers are apt to use incorrect rules when resolving a future application must use the APA (or 42 U.S.C. § 1983 for a state prisoner)." Id. at 605-06 (citing White v. Henman, 977 F.2d 292 (7th Cir. 1992); Clark v. Thompson, 960 F.2d 663 (7th Cir. 1992); Walker v. Prisoner Review Bd., 694 F.2d 499 (7th Cir. 1982)). The Richmond court concluded that because the petitioner challenged a rule potentially affecting a particular type of custody, and not the fact or duration of the custody itself,*fn5 relief must be sought under the APA and was subject to the statutory exhaustion requirements set forth in 42 U.S.C. § 1997(e). Notwithstanding Richmond, this court finds that Pimentel appropriately proceeded through Section 2241 and that his failure to exhaust his administrative remedies is excused. Courts within the Second Circuit have consistently recognized subject matter jurisdiction over actions brought under Section 2241 that challenge the validity of the December 2002 Policy, and more recently, the February 2005 Rule. See e.g., Franceski v. Bureau of Prisons, No. 04 Civ. 8667, 2005 WL 821703, at *3-4 (Apr. 8, 2005 S.D.N.Y.) (rejecting reasoning in Richmond); Cohn, 302 F.Supp.2d at 270 ("A petition for a writ of habeas corpus under 28 U.S.C. § 2241 is the proper vehicle for challenging the execution of the sentence of a person in federal custody, or a person sentenced for violating a federal criminal statute."); Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997) ("A challenge to the execution of a sentence . . . is properly filed pursuant to Section 2241.") (emphasis in the original); Yip, 2005 WL 737567 at * 2; Drew, 2005 WL 525449 at *1; Pinto, 2004 WL 3019760 at *3; Terry v. Menifee, No. 04 Civ. 4505, 2004 WL 2434978 at *2 (S.D.N.Y. Nov. 1, 2004) ("This court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 2241 and 1361"); Crowley, 312 F.Supp.2d at 455; DiStefano v. Federal Bureau of Prisons, 2004 WL 396999, at *2 (S.D.N.Y. Mar. 4, 2004); Loeffler v. Menifee, 326 F.Supp.2d 454, 456 (S.D.N.Y. 2004); Zucker, 2004 WL 102779 at *3; Adler v. Menifee, 293 F.Supp.2d 363, 366-67 (S.D.N.Y. 2003). Indeed, the government does not cite to a single case within this Circuit that rejected a prisoner's challenge to either the December 2002 Policy or the February 2005 Rule for lack of jurisdiction under Section 2241.

  Pimentel does not challenge BOP's refusal to exercise its discretion in favor of his placement in a CCC. Rather, he challenges BOP's determination that it cannot legally consider his request to exercise its discretion. In analogous circumstances, the Second Circuit determined in St. Cyr v. Immigration & Naturalization Service, 229 F.3d 406, 410 (2d Cir. 2000), aff'd 533 U.S. 289 (2001) that where an alien raised pure questions of law challenging an agency determination that it could not legally consider his request, his habeas challenge was "the type of claim that is cognizable in the district court under 28 U.S.C. § 2241." Much like the petitioner in St. Cyr, Pimentel raises a pure question of law ...


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