Bell v. Wiley
| Decision Date | 07 March 2007 |
| Docket Number | Civil Action No. 06-cv-00271-WDM-PAC[OES]. |
| Citation | 481 F.Supp.2d 1168 |
| Parties | Scott BELL, Applicant, v. R. WILEY, Warden, Respondent. |
| Court | U.S. District Court — District of Colorado |
Scott Bell, Tucson, AZ, pro se.
John Milton Hutchins, U.S. Attorney's Office, Denver, CO, for Respondent.
ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before me on the recommendation (doc no 18) of Magistrate Judge 0. Edward Schlatter on Applicant Scott Bell's Petition for Writ of Habeas Corpus ("Petition") and Motion for Preliminary Injunction. Applicant filed this action challenging a Bureau of Prisons' regulation, 28 C.F.R. § 570.21, that limits a federal prisoner's placement in a community corrections center to the last ten percent of his prison sentence, not to exceed six months. Applicant also seeks an order from the court instructing Respondent to consider Applicant in good faith for an immediate transfer to a community corrections center. Magistrate Judge Schlatter, after careful consideration of the conflicting case law in this district and other circuits, agreed with those courts that have concluded that the regulation is invalid. See Levine v. Apker, 455 F.3d 71 (2d Cir.2006); Fults v. Sanders, 442 F.3d 1088 (8th Cir. 2006); Woodall v. BOP, 432 F.3d 235 (3d Cir2005); Wedelstedt v. Wiley, 2006 WL 2475268 (D.Colo.2006). Accordingly, he recommended that Applicant's Petition be granted and the Motion for Preliminary Injunction be denied as moot. Respondent filed a timely objection, arguing that Levine, Fults, Woodall, and Wedelstedt were wrongly decided and noting that the issue was on appeal before the Court of Appeals for the Tenth Circuit. Since that court's ruling would be dispositive in this case, Respondent requested that final adjudication be stayed until the decision issued.
On February 20, 2007, the Tenth Circuit issued its opinion in the appeal of Wedelstedt v. Wiley, ___ F.3d ___, 2007 WL 512517. The majority of the panel agreed with the conclusions in Levine, Fults, Woodall, and Wedelstedt that 28 C.F.R. § 57021 contradicts Congress's clear intent as expressed in 18 U.S.C. § 3621(b) and is therefore invalid. Magistrate Judge's Schlatter's recommendation is in accordance with the now controlling law of this circuit.
Accordingly, it is ordered:
1. The recommendations of Magistrate Judge Schlatter, issued January 2, 2007 (doc no 18) are accepted.
2. Applicant's Petition for Writ of Habeas Corpus is granted. Respondent shall reconsider Applicant in good faith for placement in a community corrections center, in accordance with 18 U.S.C. § 3621(b).
3. The Motion for Preliminary Injunction (doc no 9) is denied as moot. DATED at Denver, Colorado, on March 7, 2007.
This is a habeas corpus proceeding filed prose by federal prisoner Scott Bell under 28 U.S.C. § 2241. Also pending is Applicant's Motion for Preliminary Injunction, filed March 23, 2006. A March 27, 2006 Order of Reference referred the Application to Magistrate Judge Patricia A. Coan for a recommendation on disposition.1 Respondent filed an Answer to the court's Order to Show Cause on April 10, 2006. Applicant filed his Traverse on April 26, 2006.
Applicant Scott Bell is incarcerated at the Federal Prison Camp ("FPC") in Florence, Colorado, serving a thirty-six month sentence for mail fraud, to be followed by a thirty-six month term of supervised release. Applicant's projected prison release date is June 24, 2008.
Mr. Bell challenges a Bureau of Prisons' (BOP) regulation, 28 C.F.R. § 570.21, that limits a federal prisoner's placement in a community corrections center ("CCC") (also known as a halfway house) to the last ten percent of his prison sentence, not to exceed six months. Applicant claims that the regulation is an impermissible agency construction of 18 U.S.C. § 3621(b).
Mr. Bell asks the court to order Respondent to "consider [him] in good faith for an immediate transfer to a community corrections center" and to declare 28 C.F.R. § 570.21 invalid. Applicant's Memorandum in Support of § 2241 Application, at 1011.
Respondent first argues that Mr. Bell's claim is not ripe for adjudication.
The ripeness doctrine is "intended `to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.'" New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995)(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148, 18 L.Ed.2d 681, 87 S.Ct. 1507 (1967)). Ripeness is a two-fold inquiry. I first consider whether the issue is fit for judicial review by focusing on whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all." New Mexicans for Bill Richardson, 64 F.3d at 1499 (quoting 13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure, § 3532 at 112). I also consider the hardship to the Applicant of withholding judicial consideration. Id.
In accordance with BOP Program Statement 7310.04,2 Mr. Bell's unit manager met with Applicant on November 23, 2005, and notified him that staff would make a decision about his CCC referral eleven to thirteen months before Applicant's projected release date. (Respondent's Ex. E) Respondent argues that because the BOP won't consider the matter of Mr. Bell's eligibility for. CCC referral until at least May 2007, the § 2241 Application is not ripe for adjudication and should be dismissed.
I disagree. If the BOP has not already applied 28 C.F.R. § 570.21 to Mr. Bell, that application is sufficiently imminent to present the issue of the regulation's validity in "clean-cut and concrete form." Renne v. Geary, 501 U.S. 312, 321-22, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991)(quoting Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 584, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947)). As discussed in Section III, infra, the statute which the regulation interprets, 18 U.S.C. § 3621(b), grants the BOP discretion to "designate the place of a prisoner's imprisonment," and to transfer an inmate, after considering certain factors enumerated in the statute. Applicant argues that the BOP's implementing regulation, 28 C.F.R. § 570.21, is an invalid interpretation of the agency's statutory authority because the regulation limits the Bureau's authority to both initially designate a federal prisoner to a CCC to serve his sentence, and, to transfer an inmate to a CCC at any time during his sentence. I find that there is a potential hardship to Applicant of withholding judicial consideration and decline to dismiss the Application on ripeness grounds. See Bassett v. Wiley, 2006 WL 2734311 (D.Colo.2006)(Wiley, J)3 (4).
Respondent next argues that Mr. Bell's § 2241 Application should be dismissed for failure to exhaust administrative remedies.
Generally, a federal prisoner must exhaust administrative remedies before seeking federal habeas corpus relief under 28 U.S.C. § 2241. See Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir.1986). However, exhaustion may be futile if the agency has predetermined the issue before it. See McCarthy v. Madigan, 503 U.S. 140, 148, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992).
The federal regulation which Respondent asserts as a defense to this action, 28 C.F.R. § 570.21, prohibits the BOP from referring an inmate to community confinement before the last ten percent of his sentence (not to exceed six months). The regulation does not allow for deviation from that period unless a specific BOP program provides for a greater period of community confinement. See 28 C.F.R. § 570.21(b). Respondent does not allege that any such programs are available to Mr. Bell. Accordingly, administrative relief is not a possibility because the agency has predetermined the issue.
I decline to recommend dismissal of the Application on exhaustion grounds because requiring Applicant to complete the administrative process would be futile. See Bassett, 2006 WL 2734311 at *3 (); Pimentel v. Gonzales, 367 F.Supp.2d 365, 371-72 (E.D.N.Y. 2005)(same); United States v. Paige, 369 F.Supp.2d 1257, 1260 (D.Mont.2005)(same).
The BOP's authority to place and transfer federal prisoners is derived from two statutes. The first, 18 U.S.C. § 3621(b), confers discretion on the BOP to "designate the place of the prisoner's imprisonment" including "any available penal or correctional facility that meets minimum standards of health and habitability, established by the Bureau, [after] 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 28.5
The second relevant statute, 18 U.S.C. § 3624(c), directs the BOP to prepare prisoners for reentry 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...
To continue reading
Request your trial
-
Tischendorf v. Van Buren
...remedies would be patently futile. Therefore, petitioner is excused from the exhaustion requirement. Id.; see Bell v. Wiley, 481 F.Supp.2d 1168, 1172 (D.Colo.2007) (holding that administrative relief for a challenge to 28 C.F.R. § 570.21 is not possible because BOP has predetermined the C. ......
-
Baquera v. Longshore
...the Board of Immigration Appeals (“BIA”) had already “predetermined the issue before it.” (ECF No. 1 ¶ 24 (quoting Bell v. Wiley, 481 F.Supp.2d 1168, 1172 (D.Colo.2007)).) In light of the fact that the BIA had previously ruled that aliens in Mr. Nieto's circumstances are subject to mandator......