Summary
upholding statutory interpretation underlying ten percent rule
Summary of this case from SOLOMON v. ZENKOpinion
No. 04 Civ. 6542 (PKC).
September 22, 2004
MEMORANDUM AND ORDER
On May 18, 2004 petitioner was sentenced to six months incarceration by Honorable Mary A. McLaughlin, U.S.D.J. United States v. Benun, 04-006-01, United States District Court, Eastern District of Pennsylvania. His surrender date was June 15, 2004. On August 13, 2004, petitioner, at that point an inmate at FCI Otisville, filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that he is entitled to have the Bureau of Prisons ("BOP") determine his eligibility for release at this juncture to a Community Corrections Center ("CCC"). Relying upon 18 U.S.C. § 3624(c), the BOP has taken the position that he is eligible to be considered for release for the last 10% of his period of incarceration.
Many judges of this District have had occasion to consider the issues raised by this petition. My own views are set forth inLoeffler v. Menifee, 326 F.Supp.2d 454 (S.D.N.Y. 2004), in which I denied a similar petition. I have given the parties an opportunity to address why this petition should not be governed by my ruling in Loeffler. In response, petitioner has directed my attention to the First Circuit's ruling in Goldings v. Winn, 03-2633, ___ F.3d ___, 2004 WL 2005625 (1st Cir. Sept. 3, 2004).
Probation is an alternative to imprisonment and confinement in a "community corrections facility" may be imposed as part of a term of probation. Indeed, confinement in a CCC may be imposed as part of supervised release, which, definitionally, is post-imprisonment. The First Circuit urges that a CCC may be both a place of imprisonment for section 3621(b) purposes and not a place of imprisonment for section 3563(b)(11) purposes. 2004 WL 2005625 at *9 ("The fact that residence at or participation in a program of a CCC may serve as a condition of probation or supervised release for some offenders does not mean that a CCC cannot be a place of imprisonment for other offenders, based on the nature of their sentences and whether they are subject to the control of the BOP."). With all due respect, I am not persuaded by this argument. The same Congressional enactment that created 18 U.S.C. § 3621(b) in its present form lists a "community corrections facility" as a place to which a person on probation may be placed. 18 U.S.C. § 3563(b)(11). It strikes me as more than anomalous that a person, for example, could be sent to a CCC after completion of the maximum statutory term of imprisonment as part of his supervised release if, indeed, it is a "place of imprisonment". For this hypothetical person, under what I understand to be the First Circuit's view, the CCC would not (and could not lawfully) be a place of imprisonment but to the person in the next room or bed, it could be a place of imprisonment because the BOP so designated it. In the absence of a clearer indication of Congressional intent, I am not convinced that the two statutes should be read in this manner.
The petition is denied. The Clerk is directed to enter judgment for the respondent.
SO ORDERED.