Opinion
No. 04 Civ. 8666 (LAP).
July 14, 2005
MEMORANDUM AND ORDER
Martin Reffsin ("Reffsin" or "Petitioner") petitions this Court for a writ of habeas corpus. Reffsin challenges the 2002 policy of the Federal Bureau of Prisons (the "BOP") pertaining to designation of an inmate to a community corrections center ("CCC"). Petitioner seeks a ruling requiring the BOP to disregard its new policy and determine Petitioner's eligibility for CCC placement pursuant to the BOP's pre-December 20, 2002 practices. For the reasons set forth below, Reffsin's petition is denied.
BACKGROUND
Following a jury trial, Petitioner was found guilty of violating 18 U.S.C. § 371 and 26 U.S.C. §§ 7201 and 7206. On March 30, 2000, Petitioner was sentenced to forty-one months of incarceration to be followed by three years of supervised release. October 3, 2002, Petitioner began serving his sentence.
Section 3624(c) of Title 18 of the United States Code ("Section 3624(c)") provides that 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 reentry into the community.18 U.S.C. § 3624(c) (1996). On December 13, 2002, the Office of Legal Counsel of the Department of Justice issued a memorandum instructing the BOP, among other things, to comply with Section 3624(c) when placing prisoners in pre-release custody (the "OLC Memorandum"). Footnote 6 of the OLC Memorandum states:
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 time to be served,' 18 U.S.C. § 3624, and we see no basis for disregarding this time limitation.
On December 16, 2002, the Deputy Attorney General forwarded the OLC Memorandum to the Director of the BOP with the statement that "there are no bases for disregarding these time limitations [established by 18 U.S.C. § 3624(c)]." Trager Decl. Ex. B at 2. In response to the December 16 memorandum from the Deputy Attorney General, Fredrick Menifee, the Warden of FCI Otisville ("Menifee" or "Respondent"), issued a Memorandum for Inmate Population stating that as of December 20, 2002, the BOP had changed its procedures for designating inmates to CCCs to comply with the OLC Memorandum and the December 16 memorandum from the Deputy Attorney General (the "2002 Policy"). In accordance with the 2002 Policy, the BOP approved a CCC placement date for Reffsin of June 7, 2005. Petitioner has requested that the Court order Respondent to make a determination as to Petitioner's eligibility for pre-release placement in a CCC pursuant to the BOP's pre-December 20, 2002 policy.
"Trager Decl." refers to the Declaration of Mara E. Trager filed on February 28, 2005.
Petitioner relies upon four grounds for his requested relief. First, Reffsin claims the 2002 Policy violates the ex post facto clause of the United States Constitution. Second, he asserts that the 2002 Policy is a rule that should have been promulgated pursuant to the Administrative Procedure Act's Notice and Comment Procedure. Third, Petitioner argues that placement in a CCC constitutes imprisonment and, therefore, the BOP can designate Petitioner to a CCC pursuant to 18 U.S.C. § 3621(b), notwithstanding the 2002 Policy. Finally, Reffsin argues that the 2002 Policy is in conflict with recent rulings in this District.
DISCUSSION
At the outset, I note that the plain language of the statute compels the reading reflected in footnote 6 of the OLC Memorandum. Section 3624(c) provides that the BOP shall "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" in a CCC. (Emphasis added). The overall statutory limitation is that the inmate spend a reasonable part of the last 10 per centum of his term in a CCC, and the modifier "not to exceed six months" merely places an absolute upper limit on the period of CCC time. Had Congress intended the result Petitioner urges, it would have used language like: "the BOP shall insure that a prisoner serving a term of imprisonment spends a reasonable part, but not less than six months, of the last ten per centum, of the term to be served" in a CCC. In short, the plain language of the statute does not support the interpretation Petitioner urges.Petitioner's specific arguments also fail. As to his first argument, the ex post facto clause of the Constitution proscribes the enactment of any law that punishes behavior not illegal at the time the behavior was committed or if it increases punishment beyond that which was authorized at the time of the offense.See Garner v. Jones, 529 U.S. 244, 249-50 (2000). The relevant inquiry is "`whether the new provision imposes greater punishment after the commission of the offense, not merely whether it increase a criminal sentence.'" Loeffler v. Menifee, 326 F. Supp. 2d 454, 463 (S.D.N.Y. 2004) (quoting Weaver v. Graham, 450 U.S. 24, 32 n. 17 (1981)). The OLC concluded in December 2002 that the BOP's prior practice of designating inmates to CCCs for the final six months of their respective sentences, regardless of the ten percent rule, was erroneous. The 2002 Policy expressed the need for a corrected reading of unchanged statutory language rather than the enactment of a new statute. See Loeffler, 326 F. Supp. 2d at 463. The corrected reading of an agency's misinterpretation of a statute does not support an ex post facto claim. See Caballery v. United States Parole Comm'n, 673 F.2d 43, 47 (2d Cir. 1982). Accordingly, Petitioner's claim that the 2002 Policy violated the ex post facto clause cannot for the basis for a writ of habeas corpus.
Petitioner's argument that the 2002 Policy amounts to an agency rule requiring a notice and comment period under the Administrative Procedure Act ("APA") is unpersuasive. Section 553 of Title 5 of the United States Code exempts from the notice and comment period requirement rules that are merely interpretive.See 5 U.S.C. § 553(b) (1966) ("[T]his subsection does not apply . . . to interpretive rules . . ."). A rule is interpretive if "an agency is exercising its rule-making power to clarify an existing statute or regulation." White v. Shalala, 7 F.3d 296, 303 (2d Cir. 1993). Here, because the 2002 Policy clarifies rather than substantively alters § 3624(c), the APA does not require a notice and comment period. See Adler, 293 F. Supp. 2d at 367.
Reffsin's third basis for the sought-after relief is that § 3621(b) allows the BOP to designate him to a CCC for more than the last 10 percent of his sentence because a CCC qualifies as a place of imprisonment. Section 3621(b) gives the BOP authority to "designate any available penal or correctional facility that meets minimum standards of health and habitability. . . ." 18 U.S.C. § 3621(b) (1994). The BOP has determined that CCCs are not places of imprisonment within the meaning of Section 3621(b), a determination that is consistent with the Court of Appeals' decision in U.S. v. Adler, which distinguished imprisonment from community confinement. 52 F.3d 20, 21 (2d Cir. 1995) ("`Imprisonment' and `community confinement' are not synonyms. `Imprisonment' is the condition of being removed from the community and placed in prison, whereas `community confinement' is the condition of being controlled and restricted within the community."). The close and careful examination of the Sentencing Reform Act of 1984 performed by Judge Castel in Loeffler reveals that the statutory language allowing CCC placement as a term of probation is "at odds with the notion of a place of imprisonment." Loeffler, 326 F. Supp. 2d at 459. Moreover, construing a CCC as a penal or correctional facility would, in some cases, "result in imprisonment beyond the statutory maximum." Id. Accordingly, the BOP's determination that CCCs are not places of imprisonment for purposes of § 3621(b) is valid and permissible. See Govt. Memo. at 16.
Petitioner's final argument, that "the BOP's new policy conflicts with the recent rulings in the Southern District of New York, which has jurisdiction at FCI Otisville," is without merit. I join in the decisions of Judge Castel, Loeffler, 326 F. Supp. 2d 454 (S.D.N.Y. 2004), and Judge Pauley, Cohn v. The Federal Bureau of Prisons, 302 F. Supp. 2d 267 (2004), which deny the very same relief sought by Petitioner.
CONCLUSION
The petition for a writ of habeas corpus is denied in its entirety. The Clerk of the Court shall mark this action closed and all pending motions denied as moot.
SO ORDERED.