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LEVINE v. MENIFEE

June 8, 2005.

BENJAMIN LEVINE, Petitioner,
v.
FREDERICK MENIFEE, Warden in his official capacity, Respondent.



The opinion of the court was delivered by: RICHARD CASEY, District Judge

MEMORANDUM & ORDER

Benjamin Levine ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that a Federal Bureau of Prisons ("BOP") regulation addressing the availability of confinement in a community corrections center ("CCC") violates a federal statute governing the BOP's discretion in designating institutions of confinement and the Ex Post Facto Clause of the Constitution. Respondent Frederick Menifee ("Respondent") is the Warden of the Federal Correctional Institution in Otisville, New York ("FCI Otisville"), the facility where Petitioner is currently incarcerated. For the following reasons, the writ is DENIED.

I. BACKGROUND

  Petitioner was convicted in this district of one count of mail fraud and one count of possession of a firearm by a convicted felon. He was sentenced on April 16, 2004 to eighteen months of imprisonment to be followed by three years of supervised release. Petitioner began serving his sentence on June 2, 2004, and his term of imprisonment expires on November 20, 2005. If Petitioner receives all the good time credit available, however, he would be released on September 11, 2005. Petitioner contends that he is eligible to be placed in a CCC immediately. Respondent has taken the position that Petitioner is not eligible for CCC placement until the final ten percent of his sentence and for a period not to exceed six months pursuant to 18 U.S.C. § 3624(c), which provides:
The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community.
Prior to December 2002, the BOP had a practice of placing inmates in CCCs at any point during their terms of imprisonment. This practice was based on 18 U.S.C. § 3621(b), which states:
The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, 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 —
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
In 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. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another.
  In December 2002, the Department of Justice Office of Legal Counsel ("OLC") issued a memorandum concluding that the BOP's practice of placing inmates in CCCs at any time was inconsistent with § 3624(c) because the statute only permits transfer to a CCC only during the lesser of the last ten percent of the imposed sentence or six months, and that § 3624(c) acts as a restraint on the BOP's designation authority under § 3621(b). Following the OLC memorandum, the BOP issued its own memorandum stating that CCC designations had to be limited to the last ten percent of the prison sentence and could not exceed six months. On December 30, 2002, Respondent circulated a memorandum to the inmates at FCI Otisville explaining this change in policy ("December 2002 Policy").

  The December 2002 Policy led to a series of habeas corpus petitions, with mixed results. Many courts confronting the question held the December 2002 Policy to be invalid. See, e.g., Elwood v. Jeter, 386 F.3d 842, 846-47 (8th Cir. 2004); Goldings v. Winn, 383 F.3d 17, 23-27 (1st Cir. 2004); Pinto v. Menifee, No. 04 Civ. 5839 (MHD), 2004 WL 3019760, at *3-*5 (S.D.N.Y. Dec. 29, 2004); Terry v. Menifee, No. 04 Civ. 4505 (MBM), 2004 WL 2434978, at *6 (S.D.N.Y. Nov. 1, 2004); Shoenfeld v. Menifee, No. 04 Civ. 3551 (NRB), 2004 WL 1516797, at *2 (S.D.N.Y. July 7, 2004); Grimaldi v. Menifee, No. 04 Civ. 1340 (DAB), 2004 WL 912099, at *7 (S.D.N.Y. Apr. 28, 2004); Zucker v. Menifee, No. 03 Civ. 10077 (RJH), 2004 WL 102779, at *10 (S.D.N.Y. Jan. 21, 2004). Some of these decisions invalidating the policy held that the BOP has discretion, under 18 U.S.C. § 3621(b), to designate a CCC as an inmate's place of imprisonment at any point during the inmate's sentence. For example, the First Circuit held in Goldings that the December 2002 Policy was contrary to § 3621(b) because that statute gives the BOP the discretion to designate a CCC as the place of imprisonment at any time during a sentence, a discretion that is not limited by § 3264(c). See 383 F.3d at 24 ("[W]hile § 3624(c) clearly limits the BOP's discretion not to consider community confinement or other pre-release alternatives at the end of a prisoner's prison term, it does not prohibit the BOP from doing so earlier pursuant to a different grant of discretionary authority."). In response to these successful challenges, the BOP proposed regulations governing designation of inmates to CCCs. See Community Confinement, 69 Fed. Reg. 51,213 (Aug. 18, 2004). The BOP stated, "Because various courts have held that the Bureau has discretion under 18 U.S.C. § 3621(b) to place offenders sentenced to a term of imprisonment in CCCs, the Bureau considers it prudent to determine how to exercise such discretion." Id. at 51,213. The proposed rule states that the BOP would "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. After a period for notice to and comments from the public, the BOP published the final rule on January 10, 2005. See Community Confinement, 70 Fed. Reg. 1659 (Jan. 10, 2005) (codified at 28 C.F.R. §§ 570.20-.21). This policy became effective on February 14, 2005 ("February 2005 Policy"). See id. at 1669.

  The final rule provides in part that "[t]he Bureau designates inmates to community confinement only as part of pre-release custody and programming which will afford the prisoner a reasonable opportunity to adjust to and prepare for re-entry into the community." 28 C.F.R. § 570.20. Such designations will only occur during the last ten percent of the prison sentence being served, not to exceed six months. Id. § 570.21(a). The February 2005 Policy is purportedly an exercise of the BOP's discretion under § 3621(b) to limit the circumstances in which it will designate a CCC as the place of imprisonment to those set forth in § 3624(c).

  Pursuant to both the December 2002 and February 2005 Policies, Petitioner is eligible to serve only the last ten percent of his sentence in a CCC, not to exceed six months. On August 17, 2004, Petitioner submitted a request to be placed at a CCC before the final ten percent of his sentence. Respondent denied the request. Petitioner appealed the determination to the BOP's Northeast Regional Office. When that office denied the appeal, Petitioner submitted a Central Office Administrative Remedy Appeal, which was denied on or about January 5, 2005. Petitioner filed the instant petition on February 4, 2005, challenging the December 2002 Policy on three grounds: (1) that the December 2002 Policy conflicts with the requirements of 18 U.S.C. § 3621(b), (2) that the December 2002 Policy violates the Administrative Procedures Act because it was not promulgated pursuant to formal notice-and-comment rulemaking, and (3) that the December 2002 violates the Ex Post Facto Clause of the Constitution. He requests an order that the BOP make a determination about his eligibility for designation to a CCC pursuant to the BOP's practice as it existed before December 2002.

  II. DISCUSSION

  A. The Court Construes the Petition as a Challenge to the February 2005 Policy

  The parties agree that the February 2005 Policy rather than the December 2002 Policy applies to the BOP's determination as to whether Petitioner should be designated to a CCC. Respondent argues that the petition should be dismissed as moot or for lack of standing because it challenges the December 2002 Policy, which will not be applied to Petitioner. Petitioner, in his Traverse In Reply, argues that the February 2005 Policy is also invalid. The Court must construe pro se litigants' petitions liberally, see Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998) (per curiam), and therefore construes the Traverse as a request for leave to amend the petition to challenge the February 2005 Policy. See Wiesel v. Menifee, No. 04 Civ. 9681 (DAB), 2005 WL 1036297, at *4 (S.D.N.Y. May 2, 2005) (construing a pro se prisoner's traverse as a request to amend the petition attacking the December 2002 Policy to add a challenge to the February 2005 Policy). The request to amend is granted. See 28 U.S.C. § 2242 (providing for amendments to petitions for habeas corpus as permitted in the Federal Rules of Civil Procedure); Fed.R.Civ.P. 15(a) ("[L]eave [to amend a pleading after a response has been filed] shall be freely given when justice so requires."). The amendment works no prejudice on Respondent, who anticipated the Court's ruling and responded to the challenges to the February 2005 Policy on the merits. The Court therefore addresses the merits of the petition.*fn1

  B. The February 2005 Policy Does Not Conflict With 18 U.S.C. § 3621(b)

  The BOP is responsible for administering 18 U.S.C. § 3621(b), the statute governing designation of places of imprisonment. See 18 U.S.C. § 3621(b) (giving the BOP the authority to designate places of imprisonment). In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the Supreme Court established a two-step analysis for reviewing agency interpretations of statutes that the agencies are charged with administering. See id. at 842. The first step is to determine "whether Congress has spoken to the precise question at issue"; if Congress's intent is clear, "the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. If Congress's intent on the issue is not unambiguous, however, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. Thus, a court may not upset an agency's interpretation of an issue on which Congress's intent is ambiguous if that interpretation is reasonable. See United States v. Mead, 533 U.S. 218, 229 (2001).

  Neither § 3621 nor § 3624 speaks directly to the issue of whether BOP has discretion to categorically limit CCC designations to the final ten percent of inmates' terms of imprisonment. Wiesel, 2005 WL 1036297, at *5. Petitioner's argument to the contrary is unconvincing. He maintains that § 3621 is unambiguous because it states that the BOP "shall designate the place of the prisoner's imprisonment," and that this mandatory obligation must be carried out with reference to the five listed factors. See 18 U.S.C. § 3621(b). But, although the BOP is obligated to designate places of imprisonment, its authority to select a particular type of institution such as a CCC is discretionary. The statute provides that the BOP "may designate any available penal or correctional facility . . . that [it] determines to be appropriate and suitable, considering" the five factors, and that the BOP "may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another." Id. (emphasis added). The statute does not, however, mandate that the enumerated factors must be considered on a case-by-case, as opposed to a categorical basis.

  The Supreme Court has also concluded that another provision of § 3621 is silent as to the BOP's authority to make categorical rules through notice-and-comment rulemaking. See Lopez v. Davis, 531 U.S. 230, 239-41 (2001). In Lopez, the Court confronted a rule that the BOP promulgated categorically denying early release following drug rehabilitation to prisoners convicted of, among other crimes, felonies involving firearms. See id. at 238. The statute at issue, 18 U.S.C. § 3621(e)(2)(B), provides, "The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a [substance abuse] treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve." The BOP issued a rule, relying on its discretion to grant sentence reductions under § 3621(e)(2)(B), that prohibited sentence reductions for certain categories of inmates. See Lopez, 531 U.S. at 235. The Court agreed with the BOP that the statute was silent on whether exclusion of inmates from sentence reductions had to be done on a case-by-case basis or through a categorical rule. See id. at 239-41. Because the statute was silent on the issue, the Court only looked to see if the BOP's interpretation of the statute was reasonable. See id. at 242 ("[A]ll we must decide is whether the [BOP], the ...


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