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Tuter v. Sanders

September 22, 2006

CHRISTOPHER SHAWN TUTER PETITIONER
v.
LINDA SANDERS, WARDEN, FCI RESPONDENT FORREST CITY, ARKANSAS



MEMORANDUM OPINION AND ORDER

In July of 2002, petitioner Christopher Shawn Tuter ("Tuter") was sentenced in the United States District Court for the Northern District of Oklahoma to a fifty-seven month term of imprisonment in the custody of the Federal Bureau of Prisons ("BOP") following his conditional plea of guilty to the following:

a nine-count indictment charging him with one count of possession of a firearm and ammunition after former conviction of a felony, ... six counts of possession of an unregistered destructive device, ... one count of possession of stolen explosives, ... and one count of possession of explosives after conviction of a prior felony,... See United States v. Tuter, 65 Fed.Appx. 212, 213, 2003 WL 1923505 (10th Cir. 2003). He subsequently came to be housed in the specific custody of respondent Linda Sanders ("Sanders") at the Federal Correctional Complex - Low in Forrest City, Arkansas.

Tuter commenced the proceeding at bar in June of 2006 by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. In the petition, he maintained that he was entitled to transfer to a Residential Re-entry Center ("RRC") for at least the last six months of his sentence but that the BOP has refused to transfer him on account of its application of a February 14, 2005, BOP policy governing RRC placement, a policy codified at 28 C.F.R. 570.20 and .21.*fn1 He asked the Court to declare the policy invalid and direct Sanders to "transfer [him] to a [RRC] for at least the final six months of his sentence." See Document 1 at 9.

In July of 2006, Sanders filed an answer to the petition and supported it with, inter alia, a declaration from James D. Crook ("Crook"), a BOP Supervisory Attorney. His declaration contained the following representations:

Petitioner has a projected release date of November 19, 2006, via good conduct time. ...

Petitioner's ten percent date, or pre-release preparation date, would be June 22, 2006. ...

Petitioner is currently scheduled to transfer to a RRC in Dallas, Texas on October 19, 2006. ...

Petitioner is scheduled to receive RRC placement.

Petitioner's RRC placement is not connected to the BOP regulations related to ten percent.

See Document 7, Declaration of James D. Crook at 2. Sanders asked that Tuter's petition be dismissed.

The Court conducted a thorough review of the record in this proceeding and then caused an order to be entered in which the following findings were made. The Court noted at the outset of the order that the extent to which a prisoner may serve some part of his sentence in community confinement has been the subject of much litigation.*fn2 Given the often-cited decision in Fults v. Sanders, 442 F.3d 1088 (8th Cir. 2006), though, the Court found that there was no need to consider the validity of the February 14, 2005, BOP policy governing RRC placement. The policy is invalid, and Tuter's request to declare the policy invalid was therefore denied as moot. The Court then turned to Tuter's request for a transfer to a RRC for at least the final six months of his sentence. In considering his request, the Court opined the following:

... Although Tuter is scheduled for RRC placement, Crook's declaration reflects that Tuter will not be receiving RRC placement until October 19, 2006, or a mere one month before his projected release date. Although the BOP is surely not obligated to give every prisoner a full six months RRC placement, Fults v. Sanders requires some showing that the BOP has given every prisoner individual consideration in accordance with the factors identified in 18 U.S.C. 3621(b). [Footnote omitted]. The Court has no idea whether the BOP has given Tuter the required individual consideration.

The Court also notes Crook's representation that Tuter's RRC placement is "not connected to the BOP regulations related to ten percent." See Document 7, Declaration of James D. Crook at 2. Crook has failed, however, to explain why that it, and the Court certainly does not know why.

Given the foregoing, the Court orders Sanders to file a supplemental response in which she provides the following: (1) whether the BOP has given Tuter the required individual consideration in accordance with the factors identified in 18 U.S.C. 3621(b) and required by Fults v. Sanders and, if so, to make that representation by affidavit; and (2) why Tuter's RRC placement is not connected to the BOP regulations related to ...


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