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July 5, 2005.

STEPHEN MOSS, Petitioner,
CRAIG APKER, Warden, in his official capacity, Respondent.

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Pro se petitioner Stephen Moss ("Moss"), an inmate in the custody of the Federal Bureau of Prisons ("BOP") at the Federal Correctional Institution in Otisville, New York ("FCI Otisville"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that the BOP policy regulating the availability of inmate placement in a community corrections center ("CCC") (1) violates the notice and comment requirements of the Administrative Procedure Act ("APA"); (2) is based on an erroneous interpretation of 18 U.S.C. § 3621(b); and (3) as applied to him, is a violation of the Ex Post Facto Clause of the Constitution. Moss requests that the BOP immediately consider his eligibility for transfer to a CCC under its pre-December 2002 designation policy.

For the reasons set forth below, Moss's petition is denied. I. BACKGROUND


  Moss pled guilty to unlawful possession of a sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5861 (d), and 5871, on February 25, 2003. (See Judgment and Commitment Order ("J&C"), attached as Ex. C to Declaration of Adam M. Johnson, dated June 2, 2005 ("Johnson Decl.")). According to Moss's J&C, his offense conduct ended in March of 2002. Moss was sentenced on October 14, 2004, by United States District Judge Norman A. Mordue of the Northern District of New York, to serve twelve months and one day in prison. Following the recommendation made by Judge Mordue on the J&C, the BOP designated Moss to FCI Otisville, and he began serving his sentence of imprisonment in that facility on November 30, 2004. According to respondent Craig Apker, Warden of FCI Otisville ("Respondent"), under the calculations used by BOP to determine the duration of Moss's imprisonment, Moss's custody expires on November 24, 2005, but if he receives all of his good conduct time credit, he would be released on October 8, 2005. (See Respondent's Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus, dated June 3, 2005, ("Respondent Mem.") at 2 n. 1.) Moss's habeas petition was filed on March 2, 2005. (See Petition under 28 U.S.C. § 2241 for Writ of Habeas Corpus, dated Feb. 4, 2004 ("Pet.").)

  Moss's petition challenges the lawfulness of the BOP policy that became effective on December 20, 2002. This policy reflected a change in the BOP's long standing approach to CCC designation under 18 U.S.C. §§ 3621(b)*fn1 and 3624(c)*fn2 ("§ 3621 (b)" and "§ 3624 (c)"). In his Traverse, Moss also asserts that a more recent BOP policy, which became effective on February 14, 2005, is unlawful. The history of BOP's CCC placement policy is discussed below.


  The history of the BOP's approach to placing inmates in CCCs is extensively discussed in numerous opinions addressing issues similar to the ones before the Court. See, e.g., Levine v. Menifee, 05 Civ. 1902, 2005 WL 1384021, at *1-*3 (S.D.N.Y. June 9, 2005); Pimental v. Gonzalez, 367 F. Supp. 2d 365, 367-69 (S.D.N.Y. 2005); Wiesel v. Menifee, 04 Civ. 9681, 2005 WL 1036297, at *1-*3 (S.D.N.Y. May 2, 2005); Yip v. Federal Bureau of Prisons, 363 F. Supp. 2d 548, 550-51 (E.D.N.Y. 2005); Drew v. Menifee, 04 Civ. 9944, 2005 WL 525449, at *1-*2 (S.D.N.Y. Mar. 4, 2005). As relevant here, the BOP placement policy has undergone two significant changes since 2002.

  Under the pre-December 2002 policy, the BOP could place inmates in CCCs at any time prior to their release date, and inmates presumably could serve their entire sentence in a CCC. The BOP regularly transferred inmates to CCCs for approximately the last six months of their sentence, without regard to the conditions for placement in CCCs set forth in § 3624(c). Moss alleges that, pursuant to this policy, he would have been eligible for transfer to a CCC on or about May 14, 2005. (See Pet. at 2-3.)

  In December of 2002, following receipt of a memorandum issued by the Department of Justice's Office of Legal Counsel concluding that its prior CCC placement practice was illegal, the BOP determined that CCC designations would be limited to the last ten percent of a prisoner's sentence, not to exceed six months. (See Memorandum from Federal Bureau of Prisons, U.S. Department of Justice, to Chief Executive Officers (Dec. 20, 2002) (the "December 2002 Policy"), attached as Ex. C to Pet.) Under the revised policy, no defendant sentenced to a term of imprisonment would be assigned to a CCC in the first instance.

  The December 2002 Policy led to a number of habeas corpus petitions. Two circuit courts, though not the Second Circuit, deemed the policy invalid as contradicting the plain meaning of § 3621(b). See Goldings, 383 F.3d at 17 (holding the December 2002 Policy invalid because its interpretation of § 3621(b) was contrary to plain meaning of statute); Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004) (same). District courts in this circuit were split, although the weight of authority also concluded that the December 2002 Policy was invalid. See, e.g., Pinto v. Menifee, 04 Civ. 5839, 2004 WL 3019760, at *4-*5 (S.D.N.Y. Dec. 29, 2004) (collecting cases). The courts holding the December 2002 Policy invalid found fault with the policy under one or a combination of the following grounds: (1) the policy violated the APA notice and comment requirement, see, e.g., Cato v. Menifee, 03 Civ. 5797, 2003 WL 22725524, at *5 n. 1 (S.D.N.Y. Nov. 20, 2003); (2) the policy relied on an erroneous interpretation of §§ 3621(b) and 3624(c), see, e.g., Zucker v. Menifee, 03 Civ. 10077, 2004 WL 102779, at *6-*11 (S.D.N.Y. Jan. 21, 2004); or (3) the policy violated the Ex Post Facto Clause, see, e.g., Crowley v. Federal Bureau of Prisons, 312 F. Supp. 2d 453, 462-63 (S.D.N.Y. 2004). In his petition, Moss challenges the December 2002 Policy on each of these grounds.

  In response to the division among the district courts and criticism in the circuit courts concerning the December 2002 Policy, the BOP proposed, and ultimately adopted, a new policy pursuant to the APA's notice and comment procedures. See Community Confinement, 69 Fed. Reg. 51,213 (Aug. 18, 2004) ("Proposed Rule"); Community Confinement, 70 Fed. Reg. 1659 (Jan. 10, 2005) (effective date Feb 14, 2005) (the "February 2005 Policy").*fn3 The February 2005 Policy is indistinguishable in its effect on prisoners from the December 2002 Policy. Its rationale, however, had completely changed. Where the December 2002 Policy interpreted §§ 3621(b) and 3624(c) in a manner that stripped the BOP of all discretion to place inmates in CCCs prior to the last ten percent of their sentences, not to exceed six months, the February 2005 Policy acknowledged that the BOP had discretion to place inmates in CCCs prior to the date specified in § 3624(c). The BOP asserted, however, that it could categorically exercise that discretion to decline to place inmates in CCCs before the last ten percent of their sentences, not to exceed six months, pursuant to the United States Supreme Court's decision in Lopez v. Davis, 531 U.S. 230 (2001), which held that the BOP could exercise discretion granted by another provision of § 3621 in part through the issuance of categorical rules. See February 2005 Policy, 70 Fed. Reg. at 1661.

  Moss asserts, and the BOP does not contest, that pursuant to either the December 2002 Policy or the February 2005 Policy, he will not be eligible for transfer to a CCC until September 8, 2005, almost four months after he would have been ...

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