UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 6, 2006
EMMITT WALLS, PETITIONER,
WARDEN CRAIG APKER, IN HIS OFFICIAL CAPACITY, RESPONDENT.
The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.
REPORT AND RECOMMENDATION TO THE HONORABLE KIMBA M. WOOD
In this habeas corpus proceeding pursuant to 28 U.S.C. § 2241, petitioner Emmitt Walls ("Walls") seeks an order directing the respondent to make an immediate determination of his eligibility for placement in a Community Correctional Center ("CCC") in accordance with the pre-December 2002 practices ("Old Policy") of the United States Bureau of Prisons ("BOP"). Under the Old Policy, inmates serving sentences of less than five years routinely had been sent to CCCs for periods as long as six months near the end of their sentences.
On May 27, 1994, Walls was sentenced to eighty-seven months of imprisonment, to be followed by five years of supervised release, on a narcotics conspiracy charge to which he previously had pleaded guilty. (See Decl. of Adam Johnson, Esq., dated Jan. 30, 2006 ("Johnson Decl."), Ex. C). Subsequent to his release, Walls' probation was revoked, and on November 5, 2005, he was sentenced to an additional ten months of imprisonment, to be followed by three years of supervised release. (Id. Ex. D). Walls' projected release date is April 19, 2006. (Id. Ex. A at 4).
He is currently incarcerated at the Federal Prison Camp at Otisville, New York. (Id. ¶ 2).
Walls' petition was received by the Pro Se Office of this Court on September 15, 2005. (Pet. at 1). In his petition, Walls challenges the BOP's February 2005 rules ("New Policy"), which limit an inmate's eligibility for confinement in a CCC to the last ten percent of the prison sentence, not to exceed six months. (Resp't's Return ¶¶ 9-12). Based on that policy, the earliest date on which Walls will be eligible for transfer to a CCC is March 21, 2006. (Id. Ex. I). If the Old Policy were in effect, however, Walls presumably would have been eligible for CCC placement on October 19, 2005 (six months before his statutory release date).
As Your Honor may be aware, the BOP's change in policy (and an interim policy change) spawned a host of petitions seeking the same relief. Indeed, on January 23, 2006, I issued a Report and Recommendation ("R&R") in Otero v. Menifee, No. 04 Civ. 8671, (see Resp't's Mem. Ex. A), a case which involved precisely the same issue as that presented here -- namely, whether the New Policy is a valid exercise of the BOP's discretion under the applicable statutes. In Otero, I concluded that the New Policy is not a valid exercise of discretion because it does not allow for individualized consideration of the factors enumerated in 18 U.S.C. § 3621(b). Accordingly, I recommended that Otero's petition be granted and the BOP directed to consider promptly and in good faith the appropriateness of transferring him to a CCC.
For the reasons advanced in the Otero R&R, I recommend that Walls' petition be granted and the Respondent ordered to consider promptly and in good faith, the appropriateness of transferring Walls to a CCC in light of the factors enumerated in 18 U.S.C. § 3621(b) and in accordance with the Old Policy. It bears mention, however, that my position is apparently a minority position in this District. (See Pet'r's Mem. at 6-8 & n.2).
Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Kimba M. Wood and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, NY 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Wood. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b).
FRANK MAAS United States Magistrate Judge
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