United States District Court, S.D. New York
August 12, 2005.
MILTON BIALOSTOK, Petitioner,
CRAIG APKER, Respondent.
The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
MEMORANDUM OPINION AND ORDER
Federal prisoner Milton Bialostok ("Petitioner"), an inmate in
the custody of the Federal Bureau of Prisons ("BOP") at the
Federal Correctional Institute in Otisville, New York ("FCI
Otisville"), seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2241 and a writ of mandamus pursuant to 28 U.S.C. § 1361,
requesting the Court to order Craig Apker,*fn1 the warden of
FCI Otisville, to reconsider petitioner's community corrections
center ("CCC") placement date. According to petitioner, the
policy under which his CCC placement date was actually calculated
(the "2005 Policy") is unlawful for a number of reasons,
including because (i) it is based on an erroneous interpretation
of 18 U.S.C. §§ 3621(b) and 3624(c); (ii) it was not enacted in
accordance with Administrative Procedure Act ("APA") guidelines;
and (iii) as applied to him, it violates his Due Process rights
and the Ex Post Facto Clause of the Constitution. Accordingly,
petitioner asks that his placement date be reconsidered pursuant to the designation policy
in effect prior to December 2002.
Respondent opposes the petition on a number of bases, including
because (i) petitioner lacks standing to challenge the 2005
Policy; (ii) petitioner's challenge is moot; (iii) the 2005
Policy is otherwise valid; and (iv) application of the 2005
Policy to petitioner does not violate the Ex Post Facto Clause.
For the reasons set forth below, the Court denies the petition.
A. The BOP's CCC Placement Policies
This petition calls into question the manner in which the BOP
has chosen to exercise the discretion afforded it by
18 U.S.C. §§ 3621(b) and 3624(c), which together allow the BOP to assign and
transfer inmates to and among prison facilities, including
facilities designed to help outgoing inmates re-transition into
society, such as CCCs.
Section 3621(b), which governs facility transfers, provides in
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 . . . that the Bureau
determines to be appropriate and suitable,
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(2) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the
(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
. . . 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.
18 U.S.C. § 3621(b).
Section 3624(c), which requires the BOP to prepare outgoing
prisoners for "re-entry" into the community, provides in relevant
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. The authority provided by this subsection
may be used to place a prisoner in home confinement.
. . .
18 U.S.C. § 3624(c). Although neither section has been amended in
several years, the BOP has employed three different policies in
the last three years when setting a prisoner's CCC placement
date. These policy-shifts have been detailed on several occasions
by courts considering similar challenges, see, e.g., Moss v.
Apker, 05 Civ. 2676 (VM), 2005 WL 1593016, at *1 (S.D.N.Y. July
6, 2005) (collecting cases); Wiesel v. Menifee, 04 Civ. 9681
(DAB), 2005 WL 1036297, at *1-*4 (S.D.N.Y. May 2, 2005); Levine
v. Menifee, 05 Civ. 1902 (RCC), 2005 WL 1384021, at *1-*3
(S.D.N.Y. June 9, 2005); accordingly, this Court will only
briefly describe the genesis of the 2005 Policy before addressing
its merits, beginning with the policy as it stood before December
Prior to December 2002, the BOP interpreted Sections 3621(b)
and 3624(c) such that inmates were typically transferred to CCCs
approximately six months prior to their release date, even if
this six-month period was greater than "the last 10 per centum of
the [their prison] term". (the "Pre-December 2002 Policy").
18 U.S.C. § 3624(c). In December 2002, following a declaration of the Department of
Justice's Office of Legal Counsel ("OLC"), the BOP revised its
policy to allow inmate transfer to a CCC for only the last ten
percent of their prison terms, not to exceed six months (the
"December 2002 Policy").
The impact of this change depended on how long a term the
prisoner was serving. For inmates serving terms shorter than
sixty months, it could be significant. For example, prior to
December 2002, an inmate serving a forty month sentence could be
expected to be placed in a CCC six months before his release
date, regardless of the fact that ten percent of his sentence was
only four months. By contrast, under the December 2002 Policy,
that same inmate would not be placed in a CCC until four months
before his release date, effectively shortening his CCC placement
by two months.*fn2 In the institutional context, where the
quality of prison life is presumably much lower than the quality
of life in a CCC, it is not surprising that many inmates
considered the change to be the equivalent of an additional two
month prison sentence.
For this very reason, a number of the inmates affected by the
policy change i.e., those sentenced to terms of less than
sixty months brought habeas petitions challenging the December
2002 Policy. When presented with these challenges, the majority
of the courts in this district, including this Court, found the
December 2002 policy to be unlawful for any one of or some
combination of three reasons. See, e.g., Zucker v. Menifee, 03
Civ. 10077 (RJH), 2004 WL 102779, at *11 (S.D.N.Y. Jan. 21, 2004)
(holding that the December 2002 Policy was based on an erroneous
interpretation of Sections 3621(b) and 3624(c)); Cato v. Menifee, 03 Civ. 5795
(DC), 2003 WL 22725524, at *5 n. 1 (S.D.N.Y. Nov. 20, 2003)
(policy violated the APA notice and comment requirement);
Crowley v. Federal Bureau of Prisons, 312 F.Supp.2d 453, 462-63
(S.D.N.Y. 2004) (policy violated Ex Post Facto Clause).
In response to these and other similar rulings, the BOP
proposed, and ultimately adopted, a new set of CCC placement
rules pursuant to the APA's notice and comment procedures. These
new rules are codified at 28 C.F.R. §§ 570.20, 570.21, and became
effective on February 14, 2005.*fn3 Although this new "2005
Policy" is in some respects distinguishable from its predecessor,
the end result is substantively identical from the inmates' point
of view. Indeed, under the 2005 Policy, the BOP has simply
"explicitly recogniz[ed] its discretion under § 3621(b) to
designate federal inmates to CCC's . . . [and has chosen] `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'", Wiesel, at *3 (citing
69 Fed. Reg. 51213 (Aug. 18, 2004)), thus effectively maintaining
its policy of limiting CCC placements to the final ten percent of
inmates' sentences. In other words, the 2005 Policy is essential an
updated version of the December 2002 Policy. The question before
the Court, then, is whether this new version fixes the problems
that plagued the old one.
Before addressing that question, and in order to provide some
context, the Court will briefly outline the status and procedural
history of petitioner's incarceration.
B. Procedural History
On March 30, 2004, petitioner was convicted in the
United States District Court for the Southern District of New York of
one count of conspiracy to commit money laundering, and was
sentenced to a period of 24 months imprisonment (and 24 months of
supervised release).*fn4 Petitioner began serving his
24-month prison term at FCI Otisville on June 1, 2004, and has a
projected release date of February 24, 2006, assuming he receives
full credit for good conduct. If petitioner receives no good
conduct credit, his term of imprisonment will expire on May 29,
On March 25, 2005, the warden at FCI Otisville signed a form
"BP-210", or "Institutional Referral for CCC Placement", pursuant
to which petitioner's CCC placement date was set for December 27,
2004, which is approximately two months before his February 24,
2006 projected release date. (See May 24, 2005 Declaration of
Les Owen, ¶¶ 8-9, Ex. E ("Owen Decl.")).*fn5 Petitioner is
thus among the class of prisoners affected by the BOP's decision
to limit CCC placements to the last ten percent of the prisoner's
sentence indeed, if his placement date had been calculated
pursuant to the pre-December 2002 Policy, he likely would have been eligible
for placement on or about August 24, 2005, a full four months
For this reason, on February 10, 2005, Petitioner brought the
present petition challenging his CCC placement date, asking the
Court to order that it be recalculated pursuant to the
Pre-December 2002 Policy. Although the petition challenges the
date as if it had been set pursuant to the December 2002 Policy,
the Court finds that petitioner's CCC placement date was set on
March 25, 2005, under the 2005 Policy. So petitioner's attack on
the December 2002 Policy is moot. However, in his Motion to
Request Summary Judgment ("Pet. Mot. for SJ"), petitioner
indicates that he is also challenging the 2005 Policy.
Regardless, respondent contends that the petition must be
dismissed because it erroneously focuses on the December 2002
Policy, which is not at issue in petitioner's case. Addressing
that issue first, the Court now turns to the merits of the
A. Standing and Mootness
As noted, respondent first argues that the petition should be
dismissed because it wrongly focuses on the December 2002 Policy.
It is respondent's position and a correct one, insofar as it
goes that petitioner has not suffered any injury as a result of
the December 2002 Policy, which means that he lacks standing to
bring claims based on its implementation. As a second, related
ground for dismissal, respondent notes that because the December
2002 Policy has been superseded by the 2005 Policy, petitioner's
challenge is moot. (See Memorandum of Law in Opp. to Pet., pp.
5-7 ("Opp. Memo.")). In his Motion to Request Summary Judgment, petitioner, a pro
se prisoner, has requested that this Court construe his petition
liberally, explaining that he received a "formidable" memorandum
of law from respondent, and is "ill equipped" to address the
issues contained therein. (Pet. Mot. for SJ, p. 5). For precisely
this reason, it is well established that courts should construe
pro se pleadings liberally, and should read their submissions
to raise the strongest arguments they suggest. Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). On this basis, the
Court will construe petitioner's submissions as a request for
leave to amend his Petition to include a challenge to the 2005
Policy. See Fed.R.Civ.P. 15(a); Wiesel, at *4; Levine, at
*3. The Court grants this request, primarily because the
amendment will work no prejudice on the respondent, who,
anticipating this outcome, prospectively addressed the issue of
whether the 2005 Policy is valid. The Court now turns to that
B. The 2005 Policy
Petitioner is not the first to challenge the 2005 Policy. To
the contrary, it has been the subject of several opinions issued
in this circuit, the majority of which have upheld it. Yip v.
Federal Bureau of Prisons, 363 F.Supp.2d 548, 551-52 (E.D.N.Y.
Apr. 1, 2005) (upholding 2005 Policy); Wiesel v. Menifee, No.
04 Civ. 9681 (DAB), 2005 WL 1036297 (S.D.N.Y. May 2, 2005)
(same); Levine v. Apker, 05 Civ. 3472 (CLB), 2005 WL 1417134
(S.D.N.Y. May 20, 2005) (same); Levine v. Menifee, 05 Civ. 1902
(RCC), 2005 WL 1384021 (S.D.N.Y. June 9, 2005) (same); Troy v.
Apker, 05 Civ. 1306 (GEL), 2005 WL 1661101 (S.D.N.Y. June 30,
2005) (same); Moss v. Apker, 05 Civ. 2676 (VM), 2005 WL 1593016 (S.D.N.Y. July 6, 2005) (same); Gentzler v. U.S., 05
Civ. 4521 (LTS), 2005 WL 1773684 (S.D.N.Y. July 27, 2005). A
minority of courts in this Circuit has disagreed, finding that
the 2005 Policy is invalid. Pimentel v. Gonzales,
367 F.Supp.2d 365 (E.D.N.Y. 2005) (invalidating regulations); Drew v.
Menifee, No. 04 Civ. 9944 (HBP), 2005 WL 525449 (S.D.N.Y. March
4, 2005) (same). The Second Circuit has not ruled on the issue.
Having considered these cases, as well as the submissions and
arguments of the parties, the Court is of the opinion that the
2005 Policy is valid, primarily because, under Lopez v. Davis,
531 U.S. 230 (2001), it is clear that the BOP has the authority
to categorically exercise its discretion to limit CCC placements
to the final ten percent of their sentences. Briefly, in Lopez,
the issue was whether the BOP could categorically exercise its
discretion pursuant to 18 U.S.C. § 3621(e) to deny inmates early
release. In upholding the BOP's policy, "[t]he Court reasoned
that `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.'" Wiesel, 2005 WL at *5 (citations omitted).
Having found no such intent, the Court found that the BOP could
rely on rulemaking the rule being that early release would
never be granted in exercising its discretion under § 3621(e).
There is simply no reason to distinguish the BOP's exercise of
discretion in this case. Thus, as in Lopez, the 2005 Policy
should be upheld if "1) it does not reflect an unreasonable
interpretation of Section 3621(b); and (2) Congress did not
"clearly express? an intent to withhold [the BOP]s] authority"
to regulate its discretion under Section 3621(b) through adoption of categorical rules." Moss,
2005 WL 1593016, at *6 (citing Lopez, 531 U.S., at 244). For
substantially the reasons set forth in Moss, 2005 WL 1593016,
at *6-*8, the Court concludes that the 2005 Policy satisfies both
conditions, and should therefore be upheld unless in doing so
petitioner's due process rights are violated, or the Ex Post
Facto Clause of the Constitution is violated.
C. Petitioner's Due Process Claim
Petitioner contends that his due process rights have been
violated by the BOP's application of the 2005 Policy to his CCC
placement date. The Court disagrees. Although the 2005 Policy
certainly disfavors petitioner in terms of CCC placement dates,
that alone does not and indeed, cannot give rise to a due
process violation because no protected interest has been
infringed upon. In this respect, Meachum v. Fano, 427 U.S. 215
(1976) is directly on point. In Meachum, state prisoners
alleged that they were deprived of liberty without due process
when they were transferred to a less favorable penal institution.
The Supreme Court disagreed, holding that "the Due Process Clause
in and of itself [does not] protect a duly convicted prisoner
against transfer from one institution to another within the state
prison system." 427 U.S., at 225. As the Court explained:
The Constitution does not require that the State have
more than one prison for convicted felons; nor does
it guarantee that the convicted prisoner will be
placed in any particular prison, if, as is likely,
the State has more than one correctional institution.
The initial decision to assign the convict to a
particular institution is not subject to audit under
the Due Process Clause, although the degree of
confinement in one prison may be quite different from
that in another. The conviction has sufficiently
extinguished the defendant's liberty interest to
empower the State to confine him in any of its
. . . Transfers between institutions, for example, are made
for a variety of reasons and often involve no more
than informed predictions as to what would be best
serve institutional security or the safety and
welfare of the inmate. Yet under the approach urged
here, any transfer, for whatever reason, would
require a hearing as long as it could be said that
the transfer would place the prisoner in
substantially more burdensome conditions that he had
been experiencing. We are unwilling to go so far.
Id., at 224-25. The Court concluded by noting that "[w]hatever
expectation the prisoner may have in remaining at a particular
prison so long as he behaves himself, it is too ephemeral and
insubstantial to trigger procedural due process protections as
long as prison officials have discretion to transfer him for
whatever reason or for no reason at all." For the same reason,
petitioner's due process claim in this case must fail.
D. Petitioner's Ex Post Facto Claim
Finally, petitioner alleges that in setting his CCC placement
date pursuant to the 2005 Policy, the BOP engaged in
"impermissible retroactivity" because he pled guilty and was
sentenced before that policy took effect. (Memo. of Law., p. 2).
The Court will construe this as a claim that his placement date
was set in violation of the Ex Post Facto Clause of the
Constitution. For several reasons, however, that allegation lacks
The Ex Post Facto Clause simply states, "No . . . ex post
facto Law shall be passed" U.S. Const., art. I, § 9, cl. 3; it is
well established that the "clause prohibits laws that
`retroactively alter the definition of crimes or increase the
punishment for criminal acts.'" Lee v. Governor of State of
N.Y, 87 F.3d 55, 59 (2d Cir. 1996) (citing Collins v.
Youngblood, 497 U.S. 37, 43 (1990)). Petitioner's ex post
facto allegation amounts to a claim that the 2005 Policy has the
effect of "increase[ing] the punishment for [his] criminal acts",
ostensibly because his CCC placement date has been delayed. This
claim fails to establish the second of "[two critical elements"
that "must be present for a criminal or penal law to be ex post facto", namely, that the
penal law must "disadvantage the offender affected by it."
Weaver v. Graham, 450 U.S. 24, *29, (1981).
Whether a "disadvantage" amounts to a violation of the Ex Post
Facto Clause is a question of degree. California Dept. of
Corrections v. Morales, 514 U.S. 499, 509 (1995) (citing
Beazell v. Ohio, 269 U.S. 167, 171, (1925)). Indeed, it is clear
that not every material change in position can rise to the level
of a constitutional violation. Although there is no litmus test,
the inquiry should be governed by the purpose of the Clause.
Morales, at 504. In this case, application of the 2005 Policy
clearly effects no change in the definition of petitioner's
crime. The only question, then, is whether by delaying
petitioner's CCC placement date, the BOP "increase[d] the
punishment" for his crime.
On this question, the Court adopts the reasoning set forth in
Levine v. Menifee, 05 Civ. 1902 (RCC), 2005 WL 1384021, at
*6-*10 (S.D.N.Y. June 9, 2005), and concludes that the delay did
not effect an increase in punishment. The Court also concurs with
Levine that the Second Circuit's decision in Lee, 87 F.3d 55,
is controlling. In Lee, inmate plaintiffs were initially
eligible for a temporary release program, but, due to an
amendment to the New York correctional law, became ineligible,
and alleged that this loss of opportunity amounted to an Ex Post
Facto violation. The Second Circuit disagreed, holding that the
loss "does not constitute an increase in punishment", and
therefore fails to amount to a constitutional violation. Id.,
at 59. Rather, according to the Lee court, the entirely
permissible purpose of the change was to "serve the regulatory
purpose of limiting early community contact for those in the
designated felony categories." Id. at 59. Perhaps even more so than in Lee, the
same is true in this case, which means that the 2005 Policy
"falls on the lawful side of the ex post facto line." Id.
For the foregoing reasons, it is hereby ordered that the
petition of Milton Bialostok for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 is denied. The Clerk of the Court is directed
to close this case.