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August 12, 2005.

CRAIG APKER, Respondent.

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


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 pertinent part:
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, considering —
(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 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
. . . 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 part:
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 2002.

  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 ...

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