United States District Court, S.D. New York
August 9, 2005.
STANLEY JOSEPH, Petitioner,
FREDERICK MENIFEE, Warden, FCI Otisville, Respondent.
The opinion of the court was delivered by: DENISE COTE, District Judge
MEMORANDUM OPINION AND ORDER
Pro se petitioner Stanley Joseph ("Joseph"), a federal
prisoner sentenced by this Court on March 18, 2004 to a prison
term of 27 months, has brought this petition pursuant to
28 U.S.C. § 2241 to challenge the policy of the Bureau of Prisons
("BOP"), in existence since December 2002, not to consider
prisoners for designation to a community corrections center
("CCC") until the last ten percent of their prison terms. Prior
to December 2002, the BOP considered an inmate eligible for six
months of community confinement even if six months constituted
more than ten percent of his term of imprisonment. Sanders v.
Menifee, No. 04 Civ. 1483 (DLC), 2004 WL 1562734, at *1
(S.D.N.Y. July 13, 2004). New BOP regulations replaced the
December 2002 rules on February 14, 2005. See
28 C.F.R. §§ 570.20-21. This matter was referred to Magistrate Judge Douglas
F. Eaton for a Report and Recommendation ("Report") on March 17,
2005. Although Joseph's petition initially challenged the
December 2002 rules, after this matter was referred, Joseph supplemented his petition
in order to challenge the February 2005 policy. On July 26, 2005,
Magistrate Judge Eaton issued a Report, to which Joseph has
objected, recommending that the petition be denied for the
reasons expressed in the Honorable Gerard E. Lynch's opinion in
Troy v. Apker, No. 05 Civ. 1306 (GEL), 2005 WL 1661101
(S.D.N.Y. June 30, 2005).
The court "may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge."
28 U.S.C. § 636(b)(1)(C). The court shall make a de novo
determination of the portions of the report to which petitioner
objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir. 1997). "A district court may adopt those portions of the
Report to which no objections have been made and which are not
facially erroneous." Wilds v. United Parcel Serv., Inc.,
262 F. Supp. 2d 163, 170 (S.D.N.Y. 2003) (citation omitted).
Joseph makes two objections to the Report. First, he argues
that some district judges have ruled that the February 2005 rules
are invalid, which shows that "reasonable jurists would find the
issues at least debatable." Joseph's second objection restates
his argument that the BOP exceeded its authority under
18 U.S.C. § 3621(b), and contends that this "key issue" was "not fully
discussed in Judge Lynch's decision."
Having reviewed Troy and finding that it contains a persuasive analysis of the legal challenges to the February 2005
policy, Joseph's objections to the Report are rejected.
Accordingly, it is hereby
ORDERED that the Report is adopted and the petition is denied.
The Clerk of Court shall dismiss this petition. Because
reasonable jurists have resolved this issue differently, see
Troy, 2005 WL 1661101, at *1 (collecting cases), Joseph is
granted a Certificate of Appealability. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
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