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LEVINE v. MENIFEE

United States District Court, S.D. New York


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 agency empowered to administer the early release program, has filled the statutory gap in a way that is reasonable in light of the legislature's revealed design." (internal quotation marks & citations omitted)). Congress was similarly silent as to how the BOP was to exercise its discretion in designating places of imprisonment under § 3621(b).

  As a rule formally adopted pursuant to notice-and-comment rulemaking, the February 2005 Policy is entitled to substantial deference under Chevron. Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49, 59 (2d Cir. 2004); Schneider v. Feinberg, 345 F.3d 135, 142 (2d Cir. 2003) (per curiam). The BOP's interpretation of § 3621(b) is reasonable and therefore cannot be overturned. Under the BOP's reading of the statute, it has authority to promulgate a general rule limiting the categories of inmates eligible for designation to a CCC to those in the last ten percent of their sentences. Lopez again supports the BOP's position. The Supreme Court, applying Chevron deference, held, "`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.'" Lopez, 531 U.S. at 243-44 (alteration omitted) (quoting Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 612 (1991)). The Court finds no clear expression of such intent in § 3621(b).

  Not only is the categorical approach reasonable under the statute, so is the substance of the rule that BOP promulgated. Section 3621(b) obligates the BOP to designate some facility for each term of imprisonment. The BOP has complied with that obligation here by designating FCI Otisville for Petitioner's place of imprisonment. The statute permits, but does not require, the BOP to transfer an inmate to a facility such as a CCC. Nowhere does the statute require the BOP to consider transferring any inmate to any particular facility. If the BOP is not obligated to consider transferring any inmate to a CCC, then it is not unreasonable to conclude that it has the authority to consider transferring only certain categories of inmates to a CCC such as those in the final ten percent of their terms of imprisonment. See Yip v. Fed. Bureau of Prisons, 363 F. Supp. 2d 548, 552 (S.D.N.Y. 2005). That discretion is limited by the requirement that the BOP show no favoritism based on socioeconomic status in making designations. See 18 U.S.C. § 3621(b). And the BOP has explained that the February 2005 Policy will further Congress's mandate of nondiscrimination. See 69 Fed. Reg. at 51,214 ("These proposed rules promote Congress' goal of eliminating unwarranted disparities in the sentencing and handling of inmates and also eliminate any concern that the Bureau might use community confinement to treat specific inmates leniently."). Section 3621(b) therefore stands in contrast to § 3624(c), which requires the BOP to consider placing every inmate in a facility such as a CCC during the last ten percent of each term of imprisonment. See 18 U.S.C. § 3624(c). Because the BOP is under no obligation to consider transferring any inmate to any facility under § 3621(b), it is reasonable to conclude that the BOP is not prohibited from excluding certain categories of inmates from such consideration as long as the categorization is not on the basis of social or economic status.

  The fact that the BOP established its categorical rule without referring to all of the factors enumerated in § 3621(b) does not render the agency's interpretation of the statute unreasonable. The BOP interpreted the statute as permitting it, but not requiring it, to consider the factors in determining whether a facility is appropriate for designation. As the BOP explained, "The legislative history makes clear that, although the listed factors are `appropriate' for the Bureau to consider, Congress did not intend, by listing some considerations, `to restrict or limit the Bureau in the exercise of its existing discretion.'" 69 Fed. Reg. at 51,214 (quoting S. Rep. No. 98-225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3324-25).

  The Court agrees with the BOP's reading of the statute and the legislative history. First, § 3621(b) does not say that the BOP shall consider each and every factor in making a determination about the suitability of a facility. Second, the Senate Report states that "the Bureau is 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. . . ." 1984 U.S.C.C.A.N. at 3325 (emphasis added). Thus, the factors are there to guide the BOP in the exercise of its discretion, but it need not consider each and every factor in every designation decision.*fn2 The BOP determined that the most important factors in guiding its categorical rulemaking were the need to preserve CCC resources for prisoners in the final ten percent of their terms of imprisonment and the policy of the Sentencing Commission, which is to restrict confinement in CCCs to specific situations provided in the Sentencing Guidelines. See 69 Fed. Reg. at 51,214.*fn3 The BOP also determined that the February 2005 Policy would best ensure that it complied with Congress's directive not to show favoritism in designation decisions because the policy set a uniform rule that applies regardless of the inmate's economic or social status. Id. The BOP therefore reasonably exercised its discretion in promulgating the February 2005 Policy.

  For the foregoing reasons, the Court agrees with the BOP's that its interpretation of § 3621(b) is reasonable. The BOP has the discretion to craft a categorical rule and it has done so here in a reasonable manner. The Court therefore rejects Petitioner's argument that the February 2005 Policy conflicts with § 3621(b).

  C. The February 2005 Policy Does Not Violate the Ex Post Facto Clause

  Although Petitioner does not raise an ex post facto argument in his Traverse, which the Court has construed as a request to amend the petition to challenge the February 2005 Policy, he did raise it in his original petition attacking the December 2002 Policy. Petitioner's argument was that the December 2002 Policy went into effect after he committed the offense to which he pleaded guilty. That argument applies to the February 2005 Policy as well. The Court therefore addresses the challenge as applied to the new policy but finds it to be without merit.

  The Ex Post Facto Clause simply provides, "No . . . ex post facto Law shall be passed." U.S. Const. art. I, § 9, cl. 3. The Clause "prohibits laws that `retroactively alter the definition of crimes or increase the punishment for criminal acts.'"*fn4 Lee v. Governor of State of New York, 87 F.3d 55, 59 (2d Cir. 1996) (quoting Dominique v. Wald, 73 F.3d 1156, 1162 n. 9 (1st Cir. 1996)). Petitioner argues that the policy increases the punishment for his criminal acts by making him ineligible for placement in a CCC prior to the final ten percent of his term of imprisonment. The Court concludes that this is a change in the prevailing legal regime that does not amount to an increased penalty because it does not have the purpose or effect of enhancing the penalty associated with Petitioner's crime. See Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 510 n. 6 (1995); Lee, 87 F.3d at 59; Dominique, 73 F.3d at 1163.

  The Supreme Court has contrasted laws with "the purpose and effect of enhancing the range of available prison terms" with those that merely alter the method to be followed in fixing parole release dates without changing the substantive standards for granting parole. See Morales, 514 at 508. The Court noted that the Ex Post Facto Clause does not require "that the sentence be carried out under the identical legal regime that previously prevailed." Id. at 510 n. 6. In contrast, laws with the purpose and effect of enhancing sentence ordinarily create a significant likelihood of longer terms of imprisonment. See, e.g., Miller v. Florida, 482 U.S. 423, 433-34 (1987) (holding that a statute which retroactively altered the formula under which a defendant's sentencing range was calculated and increased the habeas petitioner's sentencing range was an ex post facto law); Weaver v. Graham, 450 U.S. 24, 33 (1981) (invalidating a statute that retroactively changed the formula for the calculation of gain-time credits because it "lengthen[ed] the period that someone in petitioner's position [had to] spend in prison"); Lindsey v. Washington, 301 U.S. 397, 398-99 (1937) (holding that retroactive change in a sentencing law that required judges to sentence defendants to fifteen years in prison for a specified crime when the judges previously had discretion to sentence to an indeterminate term up to fifteen years maximum was an ex post facto law)

  This case involves a change in law that affects the conditions, rather than the length, of imprisonment. The dispute is whether the BOP must consider designating a CCC as Petitioner's place of imprisonment, not whether the BOP must consider reducing Petitioner's term of imprisonment. The Supreme Court has suggested that a law may be ex post facto when it alters punitive conditions but not the length of confinement. See Weaver, 450 U.S. at 32 (citing In re Medley, 134 U.S. 160, 173 (1890) (holding that a statute retroactively requiring solitary confinement for capital offenses and prohibiting a defendant sentenced to death from knowing the date of execution was invalid under the Ex Post Facto Clause)). Both the Second Circuit in Lee and the First Circuit in Dominique, apparently recognizing that some changes in conditions might rise to the level of an ex post facto violation, applied the rule explained in Morales to regulations that did not affect the length of imprisonment. Both, however, found no violation.

  In Lee the Second Circuit considered whether a New York State statute that removed the discretionary authority to allow certain classes of prisoners to participate in temporary release programs was an ex post facto law. See 87 F.3d at 59-60. The inmate plaintiffs, who sued under 42 U.S.C. § 1983, were eligible to participate in work release, furlough, community service, training, and education programs only with the permission of the Commissioner of Correctional Services. Id. at 57. The legislature amended the law to remove from the Commissioner that discretionary authority, and the amendment applied to the petitioners who had committed crimes and had begun serving sentences prior to the adoption of the law. See id. Applying Morales, the Second Circuit held that the New York statute at issue was not an ex post facto law because its purpose was not to add punishment but to regulate certain classes of inmates' contact with the community. 87 F.3d at 59. The court also found the effect of the law on conditions of imprisonment to "fall? on the lawful side of the ex post facto line." Id. The Second Circuit emphasized that "there [was] no allegation that plaintiffs' eligibility for or participation in a temporary release program would have any effect on the length of their sentences." Id.

  The First Circuit in Dominique held that a regulation which retroactively made the plaintiff ineligible for transfer from a medium-security to a minimum-security prison did not rise to the level of an ex post facto violation. 73 F.3d at 1163. The court concluded that the change in prison conditions — that the plaintiff was ineligible for housing in a minimum-security facility complete with the privileges that went with it — "was an allowed alteration in the prevailing `legal regime' rather than an `increased penalty' for ex post facto purposes." Id. The court provided three reasons for its conclusion. First, the change had no effect on the length of sentence or opportunity for parole. Id. Second, the regulation's primary effect was on the methods to be followed in placing a class of inmates in treatment programs and facilities, and not to cause increased punishment. See id. And third, the First Circuit reasoned that "the Ex Post Facto Clause does not encourage close scrutiny by the federal courts of ongoing procedural or operational changes in prisons to coordinate treatment, promote security, and protect the public safety." Id. In sum, the court concluded that the regulation did not increase the penalty for the plaintiff's crimes. These cases suggest that a retroactive regulation relating to the conditions, but not the length, of imprisonment may implicate the Ex Post Facto Clause if it has the purpose and effect of increasing punishment. As explained in Morales, whether a law carries a significant risk of increasing the measure of punishment must be a matter of degree. 514 U.S. at 509. But, because the Ex Post Facto Clause "should not be employed `for the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures,'" Garner v. Jones, 529 U.S. 244, 252 (2000) (quoting Morales, 514 U.S. at 508), it is unlikely that a law regulating only the conditions of confinement will be of such a degree to violate the Ex Post Facto Clause. Applying these principles, the February 2005 Policy is not an ex post facto law.

  The change in policy is not intended to add punishment. The BOP's purpose, rather, was to exercise its discretion in designating places of imprisonment in a manner that decreased favoritism, preserved CCC resources, and adhered to the Sentencing Commission's policies on CCCs. See 69 Fed. Reg. at 51,213-14.

  Second, it does not have the effect of increasing punishment. It has no effect on the length of Petitioner's confinement. Its primary effect is on the way in which the BOP exercises discretion in designating facilities as places of imprisonment rather than to subject prisoners like Petitioner to increased punishment for their crimes. It must be noted that the policy applies without regard to the crimes committed. Thus, it does not single out a type of crime or crimes for which denial of CCC placement might be an additional punishment. Cf. Morales, 514 U.S. at 520 (Stevens, J., dissenting) (arguing that a law's narrow focus on a discrete class of prisoners "implicates one of the principal concerns that underlies the constitutional prohibition against retrospective legislation — the danger that the legislature will usurp the judicial power and will legislate so as to administer justice unfairly against particular individuals"). The policy applies to all inmates not yet in the final ten percent of their terms of imprisonment.

  The punitive effect here is different in degree from that in Medley, in which the Supreme Court held that a state could not impose solitary confinement on a prisoner convicted of a capital crime or withhold from the prisoner the date of execution when those penalties were not mandated at the time of the crime. See 134 U.S. at 172-73. Unlike the regulatory provisions at issue here, solitary confinement "is itself an infamous punishment," id. at 169, and "not . . . a mere unimportant regulation as to the safe-keeping of the prisoner," id. at 167. Ignorance of the date of one's execution is also punitive as opposed to regulatory because "one of the most horrible feelings to which [a condemned prisoner] can be subjected . . . is the uncertainty . . . as to the precise time when his execution shall take place." Id. at 172. Denial of the opportunity for CCC placement before the final ten percent of one's sentence does not impose the sort of physical and mental suffering that the Medley Court found attended solitary confinement and ignorance of the date of execution. The difference in degree causes the February 2005 Policy, in the Second Circuit's words, to "fall? on the lawful side of the ex post facto line." Lee, 87 F.3d at 59.

  Finally, the admonition that the Ex Post Facto Clause not become a means for judicial micromanagement of prison regulations applies here. Congress has given the BOP substantial discretionary authority to select facilities to be places of imprisonment. If Petitioner is right that ineligibility for CCC placement is an increased punishment that can only be applied prospectively, then the BOP's ability to efficiently manage the housing of thousands of inmates would be seriously undermined. The BOP would need to determine, most likely with the help of federal-court litigation, whether the date of the crime, the date of sentence, the date of commitment to BOP then the BOP's ability to efficiently manage the housing of thousands of inmates would be seriously undermined. The BOP would need to determine, most likely with the help of federal-court litigation, whether the date of the crime, the date of sentence, the date of commitment to BOP custody, or some other date, is the starting point for determining which regulations apply to which prisoners, while federal courts would be inundated with habeas petitions and § 1983 claims requiring them to examine such details as whether a designated facility has more modest resources, less appealing accommodations, or reduced amenities making transfer to it a punishment. If Petitioner is wrong, the BOP can apply the designation regulations that it promulgates through its proper discretion to all inmates, and the federal judiciary is better left without the increased caseload. Nothing in the Supreme Court's caselaw suggests to this Court that the Ex Post Facto Clause commands the result that Petitioner advocates.

  The Court concludes that the February 2005 Policy does not have the purpose and effect of imposing on Petitioner an increased punishment. Therefore, the Court finds no violation of the Ex Post Facto Clause.

  III. CONCLUSION

  For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The Clerk of the Court is directed to close this case and remove it from the Court's active docket.

  So Ordered.


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