Opinion
Civ. Action No. 3:04CV1357(CFD).
December 30, 2004
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
Prior to December 2002, the Federal Bureau of Prisons ("BOP") followed a practice that permitted it to transfer an inmate to a community corrections center ("CCC") for up to the last six months of a sentence of imprisonment, regardless of whether the time in a CCC exceeded ten percent of that sentence. On December 13, 2002, the U.S. Department of Justice's Office of Legal Counsel ("OLC") issued an opinion that this long-standing BOP policy was inconsistent with 18 U.S.C. §§ 3621(b) and 3624(c). More specifically, the memorandum set forth the view that § 3624(c) specifically limits the BOP's authority to transfer inmates to a CCC to the last ten percent of a sentence or six months, whichever is less. Based on that OLC memorandum, the BOP revised its policy, and began to limit CCC placements to the last ten percent of an inmate's sentence or a period of six months, whichever is less. On December 20, 2002, the BOP issued a written memorandum to its wardens and other officers setting forth the new policy, hereinafter referred to as the 2002 BOP policy.
Although most of the OLC Memo addressed the placement of an inmate in a CCC at the beginning of a sentence, the Memo also stated:
Your office has advised us that BOP, in exercising its authority under section 3624(c), has sometimes not abided by the time limitation set forth in that section. The authority conferred under section 3624(c) to transfer a prisoner to a non-prison site is clearly limited to a period "not to exceed six months, of the last 10 per centum of the term to be served," 18 U.S.C. § 3624, and we see no basis for disregarding this time limitation.
OLC Memo at 7 n. 6.
18 U.S.C. § 3624(c) provides:
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 by this subsection may be used to place a prisoner in home confinement. The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody.
On October 26, 2001, petitioner Zulema Blair ("petitioner") plead guilty to one count of possession with intent to distribute cocaine base ("crack"), in violation of 21 U.S.C. § 841(a)(1). On June 28, 2002, she was sentenced to forty months imprisonment, followed by three years of supervised release. She is serving her sentence at the Federal Correctional Institution at Danbury, Connecticut. Assuming that the petitioner receives all of her good conduct time available to her pursuant to 18 U.S.C. § 3624(b), petitioner is projected to be released on April 18, 2005. Under the prior BOP policy, the petitioner would have been eligible for placement in a CCC on October 22, 2004, which represents the beginning of the last six months of her sentence. Under the 2002 BOP policy, however, the petitioner is not eligible for placement in a CCC until January 3, 2005, which represents the beginning of the last ten percent of her sentence.
The Court emphasizes that under either policy, the BOP retains discretion to decline to place an inmate in a CCC, even if the inmate is in the applicable time frame. See 18 U.S.C. § 3624(c) (providing that the BOP shall place inmates in CCCs only "to the extent practicable"); U.S. v. Mestel, No. 3:03CR276, 2004 WL 2472273 at *1 (D.Conn., Nov. 2, 2004) ("Defendant seeks a court order transferring him to a [CCC] for the final six months of his sentence. That the Court cannot do, as the sole discretion lies with the BOP").
On June 29, 2004, the petioner filed with the Court a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging the 2002 BOP policy. On October 7, 2004, this Court appointed counsel for the petitioner pursuant to 18 U.S.C. § 3006A and D.Conn. L. Rule.Civ.P. 83.10(b)(4).
Petitioner challenges the policy on three grounds: (1) it is inconsistent with the BOP's general transfer authority under 18 U.S.C. § 3621(b); (2) it violates the Administrative Procedures Act ("APA"); and (3) it has been implemented in violation of the Ex Post Facto Clause of the Constitution, Art. I, § 9 cl. 3. For the following reasons, the Court DENIES the petition for writ of habeas corpus.
18 U.S.C. 3621(b) provides in relevant part:
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, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable. . . .
I. Statutory Interpretation and the APA
District courts have been divided on the legality of the 2002 BOP policy under the first two grounds advanced by the petitioner. See, e.g., Cohn v. Fed. Bureau of Prisons, 302 F. Supp. 2d 267, 271 (S.D.N.Y. 2004) (finding the 2002 BOP to be valid); Iacaboni v. United States, 251 F.Supp.2d 1015 (D.Mass. 2003) (finding the 2002 BOP policy to be invalid); see also Schorr v. Menifee, 2004 WL 1320898 (S.D.N.Y. Jun 14, 2004) (citing cases). This Court recently had occasion to rule on the 2002 BOP policy on those two grounds as well. See Skelskey v. Deboo, 332 F.Supp.2d 485 (D.Conn., Aug. 16, 2004) (Droney, J.). In that case, this Court rejected arguments that the 2002 BOP policy is based on an erroneous interpretation of 18 U.S.C. §§ 3621(b) and 3624(c), and that it violates the notice and comment protections of the APA. Id, at 487-90. At the time that ruling was issued, no U.S. Court of Appeals had addressed the validity of the 2002 BOP policy. Since that time, however, both the First and the Eighth Circuits have issued opinions in which the 2002 BOP policy was found invalid. See Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004) (holding that the BOP has discretion to transfer prisoners to community confinement at any time during their incarceration, and not just in the last ten percent of their sentences); Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004) (holding that the BOP's discretionary authority under § 3621(b) is not subject to the temporal limitations of § 3624(c)). Given these recent decisions, the petitioner requests that this Court reconsider the conclusions it made in the Skelskey case, and grant her the relief requested in her petition.
In revisiting these issues, the Court is mindful that "[t]he general rule is that a district judge's decision neither binds another district judge nor binds him, although a judge ought to give great weight to his own prior decisions." McGinely v. Houston, 361 F.3d 1328 (11th Cir. 2004); see also 18 Moore's Federal Practice § 134.02[1][d] (Matthew Bender Ed.) (examining the role of stare decisis in the district courts).
Although the holdings of Elwood and Goldings are contrary to the conclusions reached in Skelesky, the Court is not bound by the decisions of any courts other than the Second Circuit Court of Appeals and the United States Supreme Court. It is unclear whether the Second Circuit would agree with the holdings of Goldings and Elwood. See U.S. v. Arthur, 367 F.3d 119, 123 (2d Cir. 2004) (declining to exercise jurisdiction but noting split decisions at the district court level on the validity of the 2002 BOP policy); see also 18 Moore's Federal Practice § 134.02[2] (Matthew Bender Ed.) ("The decisions of the court of appeals for one circuit are not binding upon the courts of appeal for other circuits"); Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) ("While we would consider it bad form to ignore contrary authority by failing even to acknowledge its existence, it is well understood that — in the absence of binding precedent — courts may forge a different path than suggested by prior authorities that have considered the issue."). However, as set forth in this Court's decision in Skelskey, Second Circuit decisions that appear relevant to the issues here suggest that the Second Circuit would find the 2002 BOP policy lawful. See Skelskey, 332 F.Supp.2d at 489-90; but see U.S. v. Mestel, No. 3:03CR276, 2004 WL 2472273 at *1 (D.Conn., Nov. 2, 2004) (citing Goldings and concluding that the 2002 BOP policy is based on an erroneous statutory construction, and that the BOP retains discretionary authority under § 3621(b) to transfer prisoners to a CCC at any time during their term of imprisonment, and is not constrained by the temporal restrictions set forth in § 3624(c)).
After reviewing Elwood and Goldings, as well as several subsequent district court opinions, this Court reaffirms the conclusions reached inSkelskey. Moreover, this Court agrees with the conclusions made by Judge Castel in his recent unpublished opinion in Benun v. Menifee, 2004 WL 2149130 (S.D.N.Y., Sept. 22, 2004). After noting that he also previously had rejected a habeas challenge to the 2002 BOP policy, Judge Castel provided the parties in Benun with an opportunity to address why the petition should not be guided by that prior decision. In response to that invitation, the petitioner directed the court to the recently released opinion in Goldings. Ultimately, Judge Castel found Goldings unpersuasive, and, therefore, denied the petitioner's challenge to the 2002 BOP policy. In so doing, Judge Castel noted the anomalous result reached by the First Circuit — 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. This Court finds Judge Castel's view of the First Circuit's approach to whether a CCC constitutes a place of imprisonment persuasive, particularly in light of prior decisions from the Second Circuit on this topic. See United States v. Adler, 52 F.3d 20, 21 (2d Cir. 1995) (holding that for the purposes of the U.S. Sentencing Guidelines, a CCC is not a place of imprisonment); see also Skelskey, 332 F.Supp.2d at 488-89 (concluding that the BOP's determination that a CCC is not a place of imprisonment for § 3621(b) purposes "is a permissible interpretation of the statute and is supported by Second Circuit precedent."). Finally, it appears that followingGoldings and Elwood would render the specific time limitations of § 3624(c) — both the six month and the ten percent limitations — meaningless, which violates the statutory interpretation principles that: (1) all language in a statute is to be given effect, if possible; and (2) the specific limitations of § 3624(c) override the general language of § 3621(b). See Edmond v. U.S., 520 U.S. 651, 657, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) ("Ordinarily, where a specific provision conflicts with a general one, the specific governs"); Varity Corp. v. Howe, 516 U.S. 489, 511, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) (holding that when construing statutes, the "specific governs the general"). Consequently, the petitioner's challenge to the 2002 BOP policy on her first two grounds is denied.
18 U.S.C. § 3563(b) provides:
The court may provide, as further conditions of a sentence of probation, to the extent that such conditions are reasonably related to the factors set forth in section 3553(a)(1) and (a)(2) and to the extent that such conditions involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 3553(a)(2), that the defendant . . . (11) reside at, or participate in the program of, a community corrections facility (including a facility maintained or under contract to the Bureau of Prisons) for all or part of the term of probation.
The OLC cited Alder in its December 13, 2002 memorandum to the BOP on this policy.
II. Ex Post Facto
The petitioner also claims that the 2002 BOP policy violates the Ex Post Facto Clause of the Constitution, Art. I, § 9 cl. 3. The Ex Post Facto Clause forbids the Congress and the States to enact any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." In accord with these purposes, the United States Supreme Court has stated "that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).
As with the first two grounds advanced by the petitioner, there is considerable disagreement within the district courts over the legality of the 2002 BOP policy under the Ex Post Facto clause. See, e.g., Schorr v. Menifee, No. 04-1863, 2004 WL 1320898 (S.D.N.Y. June 14, 2004) (finding that the 2002 BOP policy violates the Ex Post Facto Clause);Cohn v. Federal Bureau of Prisons, 302 F.Supp.2d 267 (S.D.N.Y. Feb. 10, 2004) (finding that the 2002 BOP policy does not violate the Ex Post Facto clause). The Court finds the line of cases holding that the 2002 BOP policy does not violate the Ex Post Facto clause to be more persuasive. In particular, the Court finds that the 2002 BOP policy does not punish behavior not illegal at the time it was committed, or increase punishment beyond that which was authorized at the time of the offense. Rather, the BOP's December 2002 interpretation of § 3624(c) merely corrects the BOP's erroneous prior interpretation of pre-existing law. As the Second Circuit has held, such a correction does not violate the Ex Post Facto clause because "there was no change in the plain meaning of the statute."Adler, 293 F.Supp.2d at 368; see also Cohn, 302 F.Supp.2d at 275 (citing cases). Consequently, the Court finds that the 2002 BOP policy does not violate the Ex Post Facto clause.
Neither Goldings nor Elwood addressed the Ex Post Facto issue.
The petition for writ of habeas corpus [Doc. #1] is DENIED.
SO ORDERED.