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Adams v. Apker

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


August 2, 2006

RAHSAAN A. ADAMS, PETITIONER,
v.
CRAIG APKER, WARDEN IN HIS OFFICIAL CAPACITY, RESPONDENT.

The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.

OPINION & ORDER

Petitioner Rahsaan Adams brings this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner requests that this Court order Respondent Craig Apker, Warden of the Federal Correctional Institution at Otisville, New York, to consider transferring him to a community confinement center in good faith, in light of the factors set forth in 18 U.S.C. § 3621(b), without reference to the Bureau of Prison's February 2005 Rule, 28 C.F.R. § 570.21. Petitioner challenges 28 C.F.R. § 570.21 on the grounds that the February 2005 Rule is contrary to the BOP's governing statutes.

The Second Circuit recently held that "in transferring an inmate to a CCC or any 'available penal or correctional facility,' the BOP must consider the factors set forth in § 3621(b), without reference to 28 C.F.R. § 570.21." Levine v. Apker, No. 05-2590, 2006 WL 1901020, at *13 (2d Cir. July 10, 2006). In light of that decision, this Court orders Respondent to consider, in good faith, transferring Petitioner to a community confinement center, in light of the factors set forth in 18 U.S.C. § 3621(b), without reference to the Bureau of Prison's February 2005 Rule, 28 C.F.R. § 570.21. The Court orders that Respondent make this determination promptly, and no later than twenty (20) days from the date of this Court's order.

IT IS SO ORDERED.

20060802

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