Levine v. Apker

• Decision Date: 10 July 2006
• Docket Number: Docket No. 05-2590 PR.
• Citation: 455 F.3d 71
• Parties: Elliott LEVINE, Petitioner-Appellant, v. Craig APKER<SMALL><SUP>*</SUP></SMALL> Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

455 F.3d 71

Elliott LEVINE, Petitioner-Appellant, v. Craig APKER^* Respondent-Appellee.

Docket No. 05-2590 PR.

United States Court of Appeals, Second Circuit.

Argued: August 4, 2005.

Decided: July 10, 2006.

Wylie M. Stecklow (Mark S. Silverman, on the brief), New York, N.Y., for Petitioner-Appellant.

Richard E. Rosberger, Assistant United States Attorney for the Southern District of New York, for David N. Kelley, United States Attorney for the Southern District of New York (Neil M. Corwin, Assistant United States Attorney, on the brief), New York, N.Y., for Respondent-Appellee.

Peter Goldberger, Ardmore, Penn. (Todd A. Bussert, New Haven, Conn.; Richard D. Willstatter, Green & Willstatter, White Plains, N.Y.; Mary Price, Families Against Mandatory Minimums Foundation, Washington, D.C.; and Michael L. Waldman, Fried, Frank, Harris, Shriver &amp Jacobson LLP, Washington, D.C.) for amici curiae Families Against Mandatory Minimums Foundation, National Association of Criminal Defense Lawyers, and New York State Association of Criminal Defense Lawyers, in support of Petitioner-Appellant.

Before: CALABRESI and RAGGI, Circuit Judges, and MURTHA, District Judge.^**

Judge RAGGI dissents in a separate opinion.

CALABRESI, Circuit Judge.

Elliott Levine, a federal prisoner at all times relevant to this action, appeals the denial of two petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Like many federal actions across the country, his applications challenge two agency actions by the Bureau of Prisons ("BOP") that limit the placement of federal prisoners in community corrections centers ("CCCs"), commonly known as halfway houses. The first agency action, a policy implemented by the BOP in December 2002 ("December 2002 Policy"), construed two provisions of the Sentencing Act, 18 U.S.C. § 3621(b) and 18 U.S.C. § 3624(c), as curtailing the BOP's authority to transfer inmates to CCCs (a) for a time no greater than the final ten percent of their sentences, and (b) for a period not exceeding six months. There followed a series of decisions in federal courts across the country, the majority of which rejected the BOP's limiting interpretation. In response, in February 2005, the BOP enacted, pursuant to formal rulemaking procedures, a categorical rule ("February 2005 Rule") that placed the same durational limits on CCC confinement. Prior to these changes, the BOP had followed a practice of, on occasion, placing some federal prisoners in CCCs for more than the last ten percent of their sentence or for more than six months, or both.

Levine challenges both BOP actions under this court's 28 U.S.C. § 2241 authority, thereby potentially presenting as many as five issues to this court: (1) whether Levine's challenges to the BOP policy and regulation are now moot; (2) whether Levine's challenges to the BOP actions are cognizable under 28 U.S.C. § 2241; (3) whether his challenges to the December 2002 Policy are justiciable in this case; (4) whether the February 2005 Rule is contrary to the BOP's governing statutes; and (5) whether the February 2005 Rule violated the ex post facto doctrine. Levine also challenges the February 2005 Rule as arbitrary and capricious under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A).

BACKGROUND

I. Facts & Procedural History

Levine was convicted in the Southern District of New York of bank fraud in violation of 18 U.S.C. § 1344. He was sentenced on September 8, 2004 to serve fifteen months imprisonment followed by three years of supervised release. He was sent to the Federal Correctional Institution, Otisville, New York to serve his sentence.

Levine brought two petitions for a writ of habeas corpus pursuant to 28 U.S.C § 2241. In the first, filed pro se before District Judge Cote on December 9, 2004, Levine challenged the BOP's December 2002 Policy and requested consideration for CCC placement six months prior to the end of his sentence of imprisonment, as could have occurred pursuant to the BOP policy in place before December 2002. In a brief order, the district court denied his petition on the grounds that the December 2002 Policy was no longer in effect and would not govern the BOP's determination regarding Levine's CCC placement. Levine, again proceeding pro se, filed a second habeas petition before District Judge Brieant on April 4, 2005. This petition challenged the February 2005 Rule. Judge Brieant denied the petition on the merits, finding that the rule was a proper exercise of the BOP's categorical rulemaking authority and did not violate the ex post facto doctrine. Levine appeals both denials.

II. The Statutory and Regulatory Framework Governing CCC Placement

Two statutes are the basis of the BOP's authority with respect to placement and transfers of federal prisoners.

The first is 18 U.S.C. § 3621(b). This statute governs the BOP's authority to designate a prisoner's place of imprisonment. It provides:

Place of imprisonment. 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, considering—

(1) the resources of the facility contemplated;

(2) the nature and circumstances of the offense;

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence—

(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or

(B) recommending a type of penal or correctional facility as appropriate; and

(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.

In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another. . . .

18 U.S.C. § 3621(b).

The second relevant statute is 18 U.S.C. § 3624(c), which instructs the BOP to prepare prisoners for re-entry into the community. The applicable provision states:

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.. . .

18 U.S.C. § 3624(c).

Several circuit courts have chronicled the history of CCC placement policy leading up to the February 2005 Rule. See Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 240 (3d Cir.2005); Goldings v Winn, 383 F.3d 17, 19-21 (1st Cir.2004); Elwood v. Jeter, 386 F.3d 842, 844-45 (8th Cir.2004). Rather than repeat the entire history here, we note only the relevant highlights.

Prior to the policy change in December 2002, the BOP interpreted its governing legislation such that the agency's general authority to designate places of imprisonment was "not restricted by § 3624(c) in designating a CCC for an inmate and [that it could] place an inmate in a CCC for more than the `last ten per centum of the term,' or more than six months, if appropriate." See U.S. Dep't of Justice, Federal Bureau of Prisons Program Statement 7310.04 (Dec. 16, 1998). But on December 13, 2002, the Department of Justice's Office of Legal Counsel ("OLC"), advised the BOP that this practice exceeded the agency's authority under 18 U.S.C. §§ 3621(b) and 3624(c).

The OLC reasoned that confinement in a community corrections center did not constitute "imprisonment" within the meaning of § 3621(b). It found that that the BOP therefore lacked statutory authority to allow an offender to serve a term of imprisonment, as defined by the federal court's sentencing order, in community confinement for any period longer than the transitional pre-release custody defined in § 3624(c). The United States Attorney General's Office adopted this position on December 16, 2002. To comply with the Attorney General's position, the BOP issued the December 20, 2002 policy, which, as previously described, mandated that "[p]re-release programming CCC designations are limited in duration to the last 10% of the prison sentence, not to exceed six months."

A cavalcade of habeas petitions challenging the December 2002 Policy followed. The First and Eighth Circuits, as well as many district courts,¹ found the policy contrary to the plain meaning of § 3621(b), which they read—as had the BOP previously—to give the BOP discretionary authority to place federal inmates in CCCs at any time during their prison term. See Goldings, 383 F.3d at 26; Elwood, 386 F.3d at 847. These courts found that § 3624(c) imposed an affirmative, discretionless obligation on the BOP, where practicable, to send an offender to a less-restrictive facility during a transitional period prior to final release. See Goldings, 383 F.3d at 23; Elwood, 386 F.3d at 846-47. The courts further held that the section did not preclude the BOP from doing the same at earlier stages. Goldings, 383 F.3d at 24; Elwood, 386 F.3d at 846-47. In other words, the combined import of the statutes was to give the BOP discretion to transfer an inmate to a CCC for a period longer than six months or ten percent of his sentence, but to oblige the BOP, where practicable, to transfer inmates to a CCC for a reasonable part of the last ten percent, not to exceed six months, of his sentence. See Goldings, 383 F.3d at 28-29; Elwood, 386 F.3d at 846-47.

On August 18, 2004, the BOP, after applying its formal notice-and-comment procedures,...