MEMORANDUM OPINION AND ORDER
Johnny Stennis, an inmate in the Federal Correctional Institution in Forrest City, Arkansas, brings this 28 U.S.C. § 2241 petition for writ of habeas corpus challenging the policy of the Bureau of Prisons (BOP) regarding when a federal prisoner is eligible for transfer to a community corrections center (CCC), along with a supporting declaration (docket entries #1, #2). Respondent has filed a response (docket entry #5), to which Petitioner replied (docket entries #10, #11). For the reasons that follow, the petition is GRANTED in part and DENIED in part.*fn1
Petitioner states that he is serving a eighteen-month sentence of imprisonment for violating the terms of his supervised release. He says the BOP tentatively scheduled him for transfer to a CCC*fn2 on June 8, 2006, which would permit him only about thirty days of CCC time. He says he requested that he be permitted to spend at least the last six months of his sentence in a CCC due to his personal needs and circumstances, which the BOP denied based on its February 2005 policy which categorically limits CCC placement to the last ten percent of an inmate's sentence. Petitioner argues that the BOP's interpretation of the applicable statutes is erroneous and illegal and that application of this policy to him violates the Ex Post Facto Clause of the United States Constitution.
Petitioner says the BOP has now informed him he is not eligible for any CCC time due to his inability to complete the BOP's drug program. He says he attended the forty-hour program but was unable to pass the final exam due to his learning disabilities.
He asks the Court to declare the February 2005 policy invalid, to enjoin the BOP from imposing a CCC eligibility condition that he does not have the ability to satisfy, and to order the BOP to transfer him to a CCC for the last six months of his sentence. Petitioner does not state when his six-month date would be, but the BOP website (www.bop.gov) shows a projected release date of July 4, 2006. Six months before then would be January 4, 2006.
This case turns on the interpretation of two statutes. Pursuant to 18 U.S.C. § 3621(b), the BOP is authorized to "designate the place of [a federal] prisoner's imprisonment," which may be "any available penal or correctional facility that meets minimum standards of health and habitability established by the [BOP]...[and] that the [BOP] determines to be appropriate and suitable." The statute further provides that the BOP "may at any time ... direct the transfer of a prisoner from one penal or correctional facility to another." The statute lists the following factors for the BOP to consider in making an initial housing designation or transfer determination: (1) the resources of the facility, (2) the nature and circumstances of the prisoner's offense, (3) the prisoner's history and characteristics, (4) any relevant statements or recommendations by the sentencing court, and (5) any pertinent policy statements issued by the Sentencing Commission. There is no contention here that a CCC does not constitute a "place of ... imprisonment" or a "penal or correctional facility." See Elwood v. Jeter, 386 F.3d 842, 846 & n.2 (8th Cir. 2004) (stating that government had conceded that a CCC is a place of imprisonment and a penal or correctional facility).
The second statute, 18 U.S.C. § 3624(c), states in relevant part: Pre-release custody. -- The [BOP] 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.
B. BOP's December 2002 Policy
For a number of years, the BOP construed its authority under § 3621(b) and § 3624(c) as authorizing the regular transfer of inmates from prison to community confinement for the last six months of their sentences, even if the six-month period exceeded ten percent of their sentences. See BOP Program Statement 7310.04 ¶ 5.*fn3
On December 13, 2002, the Office of Legal Counsel for the United States Department of Justice (OLC) issued a memorandum opinion finding that this practice was unlawful. OLC Memo. Op. for Dep. Atty. Gen., Bureau of Prisons Practice of Placing in Community Confinement Certain Offenders Who Have Received Sentences of Imprisonment, 2002 WL 31940146 (Dec. 13, 2002). The opinion stated that, when a prisoner has received a sentence of imprisonment, the BOP's authority to transfer him to a non-prison site is limited to a period "not to exceed six months, of the last 10 percentum of the term to be served," pursuant to § 3624(c)'s language. The United States Attorney General adopted the OLC's position*fn4 and, in response, the BOP altered its policies regarding pre-release community confinement designation, limiting the duration to the lesser of six months or ten percent of a prisoner's sentence. See BOP Memo. for Chief Executive Officers (Dec. 20, 2002)*fn5 (hereinafter referred to as the "December 2002 Policy").
The BOP's December 2002 Policy generated a multitude of prisoner petitions and, consequently, a number of conflicting District Court decisions on its validity. The issue was settled in the Eighth Circuit by the ruling in Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004), which reversed a decision arising out of this District and concluded that the December 2002 Policy was based on an erroneous interpretation of § 3621(b) and § 3624(c). In Elwood, the Eighth Circuit Court of Appeals held that the correct interpretation of the statutes was as follows. First, § 3621(b) gives the BOP discretion to transfer prisoners to CCCs at any time during their incarceration. Second, § 3624(c) bestows an affirmative duty on the BOP to ensure that each prisoner spends a reasonable part of the last ten percent of his sentence under pre-release conditions that will facilitate a smooth re-entry into the community. Third, the BOP's duty ...