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CHARBONEAU v. MENIFEE

August 24, 2005.

DANIEL E. CHARBONEAU, Petitioner,
v.
Fredrick Menifee, Warden, Federal Correctional Institution, Otisville, New York Respondent.



The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge

OPINION AND ORDER

Daniel E. Charboneau, a federal prisoner, petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that he is entitled to have the Federal Bureau of Prisons ("BOP") determine his eligibility for transfer to a Community Corrections Center ("CCC"), or what is commonly referred to as a "halfway house." Petitioner challenges a policy implemented by the BOP in December 2002 that to comply with 18 U.S.C. § 3264(c), a federal prisoner may be transferred to a CCC only for a period equal to the last 10% of his sentence, not to exceed six months. The prior BOP policy allowed transfer to a CCC for a period longer than the last 10% of a prison term, up to a maximum of six months. Petitioner would have the court direct respondent to "disregard" the December 2002 policy and "immediately make a determination as to his eligibility for prerelease designation to a CCC pursuant to the BOP's practices, procedures and criteria prior to . . . December 2002." (Pet. for Writ of Habeas Corpus 6.) In his Traverse, petitioner challenges also the validity of the BOP's February 14, 2005 amendment to 28 C.F.R. §§ 570.20-.21, which as explained below, reaches the same substantive result as the December 2002 policy but is based on a different legal rationale. For the following reasons, the writ is denied and Charboneau's petition is dismissed. I.

  The litigation over the December 2002 policy and the later promulgation of the February 2005 regulations has been discussed extensively by other courts and need not be recounted in full here. See, e.g., Moss v. Apker, No. 05 Civ. 2676, 2005 WL 1593016, at *1-3 (S.D.N.Y. July 6, 2005); Pimentel v. Gonzalez, 367 F. Supp. 2d 365, 367-69 (E.D.N.Y. 2005). Briefly, before December 2002, the BOP could routinely designate or transfer prisoners to CCCs for periods longer than 10% of each inmate's prison term, usually up to a maximum of six months. See Moss, 2005 WL 1593016, at *2; Zucker v. Menifee, No. 03 Civ. 10077, 2004 WL 102779, at *2 (S.D.N.Y. Jan. 21, 2004). However, in December 2002, after the Department of Justice Office of Legal Counsel declared the BOP placement policy to be an "unlawful" interpretation of 18 U.S.C. § 3624 (c),*fn1 the BOP determined that CCC designations would be limited to the final 10% of a prisoner's sentence, not to exceed six months. See Terry v. Menifee, No. 04 Civ. 4505, 2004 WL 2434978, at *1-2 (S.D.N.Y. Nov. 1, 2004). This policy change spawned numerous challenges by inmates, with the majority of courts in the Second Circuit, including this one, holding, inter alia, that the December 2002 policy erroneously limited the BOP's broad discretion over the placement of prisoners under 18 U.S.C. § 3621(b).*fn2 See Terry, 2004 WL 2434978, at *3 n. 2 (collecting cases).

  In response to these holdings, the BOP proposed and adopted new regulations pursuant to the notice and comment procedures of the Administrative Procedure Act, 5 U.S.C. §§ 551-59 ("APA"). Community Confinement, 69 Fed. Reg. 51213 (proposed Aug. 18, 2004); Community Confinement, 70 Fed. Reg. 1659 (Jan. 10, 2005) (effective Feb. 14, 2005) (codified at 28 C.F.R. pt. 570) ("February 2005 Rule"). The new rule allowed BOP to limit CCC assignments to the same extent as it did under the December 2002 policy but provided "an alternative legal basis for the BOP's authority to do so." Pimentel, 367 F. Supp. 2d at 367. As Judge Garaufis has explained:
[I]n promulgating the February 2005 Rule, BOP acknowledged that it had discretion to place offenders sentenced to a term of imprisonment in CCCs before the last ten percent of their sentence, but decided to "categorically exercise its discretion to limit inmates' community confinement to the last ten percent of their sentence, not to exceed six months." 69 Fed. Reg. at 51213. Thus, while the December 2002 Policy is premised on a lack of discretion, the February 2005 Rule is based on discretion that is "categorically exercised."
Id. at 373. In drawing this categorical line limiting CCC placements to the last 10% of an inmate's sentence, not to exceed six months, the BOP relied principally on the Supreme Court's decision in Lopez v. Davis, 531 U.S. 230 (2001), which upheld the BOP's categorical exercise of discretion under another provision of § 3621 on the ground that "[e]ven 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." Id. at 243-44 (internal quotation marks omitted).

  Petitioner currently is serving a 24-month sentence at the Federal Correctional Institution ("FCI") in Otisville, New York. (Return ¶ 2.) Under the BOP policy in place before December 2002, petitioner contends he would have been eligible for transfer to a CCC on May 15, 2005. (Pet. for Writ of Habeas Corpus 2-3.) Under either the December 2002 policy or the February 2005 Rule, he is ineligible for transfer until September 14, 2005. (Ward Decl. ¶ 10.) Petitioner's projected release date, assuming he receives all good time credit available, is November 15, 2005. (Id. ¶ 15.)

  II.

  As a preliminary matter, respondent seeks dismissal of Charboneau's petition for mootness and lack of standing, noting that the December 2002 policy Charboneau challenges has been superseded by the February 2005 Rule and therefore will not be applied to him.*fn3 (Respondent's Mem. Opp'n to Pet. for Writ of Habeas Corpus 7-9.) Respondent is correct that petitioner's motion has been mooted by promulgation of the February 2005 Rule. Yip v. Fed. Bureau of Prisons, 363 F. Supp. 2d 548, 551 (E.D.N.Y. 2005); Moss, 2005 WL 1593016, at *3. However, because the court is obligated to construe a pro se litigant's petition liberally, Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998) (per curiam), and because petitioner's Traverse makes clear that he wishes also to challenge the application of the February 2005 Rule to his case (see Petitioner's Traverse in Reply to Respondent's Opp'n 3-4 ("Pet'r Traverse")), this court construes Charboneau's petition as a direct challenge to the February 2005 Rule.*fn4 See Levine v. Menifee, No. 05 Civ. 1902, 2005 WL 1384021, at *3 (S.D.N.Y. June 9, 2005), Moss, 2005 WL 1593016, at *4; Pimentel, 367 F. Supp. 2d at 372; Wiesel v. Menifee, No. 04 Civ. 9681, 2005 WL 1036297, at *4 (S.D.N.Y. May 2, 2005). With his petition so recast, petitioner has standing to challenge the February 2005 Rule.

  III.

  Recent cases have addressed the validity of the February 2005 Rule, with the majority of courts in this circuit upholding the regulation as a permissible, albeit categorical, exercise of the BOP's broad discretion to designate and transfer inmates under 18 U.S.C. § 3621(b). Compare Gentzler v. United States, No. 05 Civ. 4521, 2005 WL 1773684 (S.D.N.Y. July 27, 2005) (upholding February 2005 Rule); Moss, 2005 WL 1593016 (same); Troy v. Apker, No. 05 Civ. 1306, 2005 WL 1661101 (S.D.N.Y. June 30, 2005) (same); Levine v. Menifee, 2005 WL 1384021 (same); Levine v. Apker, No. 05 Civ. 3472, 2005 WL 1417134 (S.D.N.Y. May 20, 2005) (same); Yip, 363 F. Supp. 2d 548 (same); Wiesel, 2005 WL 1036297 (same but finding violation of Ex Post Facto Clause as applied to petitioner), with Pimentel, 367 F. Supp. 2d 365 (invalidating February 2005 Rule); Drew v. Menifee, No. 04 Civ. 9944, 2005 WL 525449 (S.D.N.Y. Mar. 4, 2005) (same). This court agrees with the decisions of those courts that have upheld the February 2005 Rule and adopts their analyses as its own. However, I offer the following additional comments to respond directly to the specific arguments made by petitioner and to state the grounds for my disagreement with the conclusions reached in Pimentel and Drew.

  Petitioner's arguments notwithstanding, this case involves the straightforward application of the Supreme Court's decision in Lopez v. Davis, 531 U.S. 230 (2001). See Moss, 2005 WL 1593016, at *6 ("The policy upheld by the Supreme Court in Lopez is indistinguishable in all material respects from the one at issue in this case."); Wiesel, 2005 WL 1036297, at *6 ("The reasoning in Lopez is equally applicable to the present case."); Yip, 363 F. Supp. 2d at 552 ("There is no significant distinction between the situation in Lopez and the case at hand.").

  In Lopez, the Supreme Court upheld the BOP's categorical exercise of its discretion to exclude certain inmates — those convicted of offenses involving firearms — from discretionary early release eligibility after successful completion of a drug treatment program under 18 U.S.C. § 3621(e) (2) (B). The Court allowed BOP to exercise its discretion through the issuance of a categorical rule, holding that "[e]ven if a statutory scheme requires individualized determinations," which was not the case in Lopez, "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 (quoting Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 612 (1991)); see also id. at 244 ("The Bureau is not required continually to revisit issues that may be established fairly and efficiently in a single rulemaking proceeding.") (internal quotation marks omitted). Noting that the statute itself was silent about how the BOP was to exercise its discretion (i.e., on a case-by-case basis or categorically), the Court upheld the BOP regulation as having "filled the statutory gap in a way that is reasonable in light of the legislature's revealed design." Id. at 242 (internal quotation marks omitted).

  In his Traverse, Charboneau offers two main arguments to distinguish Lopez. First, he contends that unlike the statute at issue in Lopez, the one at issue here, 18 U.S.C. § 3621(b), establishes a "discretionless obligation" governing the designation and transfer of federal inmates by the BOP. (Pet'r Traverse 6 (citing Lopez, 531 U.S. at 241).) In so arguing, petitioner looks no further than the first sentence of § 3621(b). However, although the statute provides that the BOP "shall designate the place of the prisoner's imprisonment," the remainder of the provision indicates repeatedly that the BOP's authority to designate or transfer an inmate to a particular facility such as a CCC is broad and discretionary. See 18 U.S.C. § 3621(b) (providing that the BOP "may designate any available penal or correctional facility . . . that the Bureau determines to be appropriate and suitable, considering" five listed 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") (emphases added). By designating petitioner to FCI Otisville, the BOP has satisfied its statutory obligation even under the language cited by petitioner, Levine v. Menifee, 2005 WL 1384021, at *5, and no other language in § 3621(b) requires the BOP to consider transferring petitioner to a CCC before the 10% date mandated by 18 U.S.C. § 3624(c). See Troy, 2005 WL 1661101, at *2; Levine v. Menifee, 2005 WL 1384021, at *5; Yip, 363 F. Supp. 2d at 552.

  Second, petitioner argues that unlike the BOP regulation in Lopez, which limited early release eligibility based on an inmate's pre-conviction conduct, the February 2005 Rule "fails because the BOP does not establish a category of prisoners from the class of all prisoners to whom a restriction [against transfer] to a CCC applies, but rather, restricts the time the BOP may place the prisoner in a CCC." (Pet'r Traverse 9; see also id. at 10 ("In the New 10 percent Rule, there is no designation of a category; the rule applies to all prisoners who will receive consideration for placement in a CCC.").) Petitioner's semantic distinction between a "class" and a "category" of prisoners, however, is unavailing. As Judge Gershon has noted, the BOP has in fact "identified a category of prisoners — inmates who are not yet required to be considered for transfer to a CCC under Section 3624(c), but are eligible under Section 3621(b) — and created a rule denying transfer to all of them, in conflict with no identified directive of Congress." Yip, 363 F. Supp. 2d at 552; see also Levine v. Menifee, 2005 WL 1384021, at *5 ("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."). Even assuming that the § 3621(b) factors apply equally to the timing of an inmate's transfer to a CCC, rather than simply "the substantive decision whether or where to transfer the prisoner," Troy, 2005 WL 1661101, at *3 (emphases added), the February 2005 Rule remains valid because it "represent[s] the permissible, categorical exercise of the discretion statutorily granted to the BOP." Id.

  Of the courts in this circuit that have assessed the validity of the February 2005 Rule, only two thus far have concluded that the new policy exceeds the BOP's authority under Lopez. See Pimentel v. Gonzalez, 367 F. Supp. 2d 365 (E.D.N.Y. 2005); Drew v. Menifee, No. 04 Civ. 9944, 2005 WL 525449 (S.D.N.Y. Mar. 4, 2005). Although both Pimentel and Drew acknowledge that the BOP is permitted to make categorical determinations through rulemaking proceedings, each questions the validity of the February 2005 Rule on two grounds: (i) that § 3621(b) and its legislative history "specifically require?" the BOP to consider each statutory factor when making any designation or transfer decision, Pimentel, 367 F. Supp. 2d at 375; see also Drew, 2005 WL 525449, at *4 ("Section 3621(b) sets forth factors that the BOP must consider in determining the facility to which a prisoner is designated."); and (ii) that the BOP regulation "in no way furthers or ...


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