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OATSVALL v. SANDERS

September 16, 2005.

WINSTON OATSVALL PETITIONER
v.
LINDA SANDERS, Warden, FCI Forrest City RESPONDENT.



The opinion of the court was delivered by: J. RAY, Magistrate Judge

MEMORANDUM ORDER

Petitioner, who is currently incarcerated at the Federal Correctional Institute located in Forrest City, Arkansas, has filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241. (Docket entry #1.) Respondent has filed a Response, to which Petitioner has filed a Reply. (Docket entries #3 and #4.) The issues are now joined and ready for disposition. For the reasons set forth herein, the Petition will be granted.*fn1

I. Background

  In this habeas action, Petitioner challenges a recent rule of the Federal Bureau of Prisons ("BOP"), which took effect on February 14, 2005 (the "February 2005 Rule"), limiting the duration of confinement in a community corrections center ("CCC") to "the last ten percent of the prison sentence being served, not to exceed six months." 28 C.F.R. § 570.21(a). Before addressing the merits of Petitioner's claim, it is important to understand the genesis of the February 2005 Rule and the specific facts relevant to Petitioner's case. A. History of the BOP's December 2002 Policy

  For a number of years, BOP policy allowed prisoners to serve the last six months, or more, of their sentences in a CCC, regardless of the ratio of their CCC time to the total length of their sentences.*fn2 See BOP Program Statement 7310.04 at 4. This was commonly referred to as "back end" entry into a CCC.*fn3 See Adler v. Menifee, 293 F. Supp. 2d 363, 365 (S.D.N.Y. 2003).

  In 2002, the BOP began to question whether its CCC policy violated 18 U.S.C. §§ 3621(b) and 3624(c). In pertinent part, § 3621(b) provides that:
Place of imprisonment. — 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. . . . 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. . . .
(Emphasis added.) Additionally, § 3624(c) provides, in pertinent part, that:
Pre-release custody. — 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 in this subsection may be used to place a prisoner in home confinement. . . .
(Emphasis added). At first blush, it appears that the two provisions conflict because § 3621(b) seems to allow CCC placement "at any time" and for any duration, while § 3624(c) appears to limit CCC placement for a period "not to exceed" the last six months or ten percent of a prisoner's sentence.

  On December 13, 2002, the Office of Legal Counsel for the United States Department of Justice ("OLC") issued a memorandum opinion stating that the authority conferred under 18 U.S.C. § 3624(c) to transfer a prisoner to community confinement "is clearly limited to a period `not to exceed six months, of the last 10 per centum of the time to be served,' 18 [U.S.C.] § 3624[c], and we see no basis for disregarding this time limitation." OLC Mem. Op. for Dep. Att. Gen., Re: Bureau of Prisons Practice of Placing in Community Confinement Certain Offenders Who Have Received Sentences of Imprisonment, at 7 n. 6 (Dec. 13, 2002).

  The United States Attorney General adopted the OLC's position in a memorandum dated December 16, 2002, from Larry D. Thompson, Deputy Attorney General, to Kathleen Hawk Sawyer, who was then the BOP Director. Dep. Att. Gen. Memo., Community Corrections Center Placement of Offenders Sentenced to Terms of Imprisonment Under Federal Sentencing Guidelines (Dec. 16, 2002). Shortly thereafter, the BOP adopted a new back end entry policy limiting the duration of confinement in a CCC to "the last 10% of the prison sentence, not to exceed six months" (hereinafter referred to as the "December 2002 Policy"). BOP Memo. for Chief Executive Officers, at 2 (Dec. 20, 2002).

  The BOP's December 2002 Policy resulted in numerous legal challenges from federal prisoners. In Elwood v. Jeter, No. 2:03CV00202 JTR, slip op. at 5-9 (E.D. Ark. May 5, 2004), this Court upheld the policy on the ground that it was consistent with the plain language of 18 U.S.C. § 3621(b) and 18 U.S.C. § 3624(c). On appeal, the Eighth Circuit reversed. See Elwood v. Jeter, 386 F.3d 842, 846-47 (8th Cir. 2004). Specifically, the Court held that "§ 3621(b) gives the BOP the discretion to transfer prisoners to CCC's at any time during their incarceration." Id. at 847 (emphasis added). The Court further held that, pursuant to § 3624(c), "the BOP is required to place prisoners in `conditions that will afford [them] a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community' during a reasonable part of the last ten percent of the prisoner's term, to the extent practicable." Id. (quoting § 3624(c)) (emphasis added). However, the Court clarified that the duty imposed upon the BOP under § 3624(c) "shall not extend beyond the last six months of the prisoner's sentence." Id. Finally, the Court emphasized that:
. . . 18 U.S.C. § 3624(c) does not require placement in a CCC. It only obligates the BOP to facilitate the prisoner's transition from the prison system. Under § 3621(b), the BOP may place a prisoner in a CCC for six months, or more. Under § 3624(c) the BOP must formulate a plan of pre-release conditions. This plan may include CCC placement, home confinement, drug or alcohol treatment, or any other plan that meets the obligation of a plan that addresses the prisoner's re-entry into the community. Likewise, the obligation is qualified by the phrase "to the extent practicable." Security concerns or space limitations in a CCC near the prisoner's home are among the factors that may make it impractical to transfer a prisoner to a CCC for all or even part of the transition period.
Id.

  B. The February 2005 Rule

  In response to successful challenges to the December 2002 Policy, the BOP proposed a new rule under the Administrative Procedure Act's notice-and-comment procedure. See Community Confinement, Proposed Rule, 69 Fed. Reg. 51213-01 (Aug. 18, 2004). Because various courts held that the BOP has discretion under § 3621(b) to place prisoners in CCCs, the BOP proposed 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." Id. The BOP further explained that "[t]his categorical exercise of discretion is permissible based on the Supreme Court's recognition that, even when a statutory scheme requires individualized determinations, the decisionmaker has authority to rely on rulemaking to resolve certain issues of general applicability (unless Congress clearly expresses an intent to withhold that authority)." Id. (citing Lopez v. Davis, 531 U.S. 230, 243-44 (2001)). The proposed rule became effective on February 14, 2005. See Community Confinement, Final Rule, 70 Fed. Reg. 1659-01 (Jan. 10, 2005).*fn4

  C. Facts Relevant to Petitioner's Case

  On October 21, 2003, Petitioner plead guilty to one count of making a false declaration before a Grand Jury, a violation of 18 U.S.C. § 1623. United States v. Oatsvall, E.D. Ark. No. 4:02-CR-190-9(JMM), Docket entry #220. Petitioner was sentenced to twelve months and one day imprisonment. Id. at Docket entry #287.

  Petitioner is scheduled for release from confinement on November 23, 2005, and is scheduled for transfer to a CCC on October 24, 2005. (Docket entry #1, p. 3.) In lieu of the approximately one month CCC placement, Petitioner contends that Respondent has denied his request for ninety days' placement, which is within the BOP's discretion under 18 U.S.C. § 3621(b). Id. Petitioner argues that Respondent has made its ...


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