Hacker v. Federal Bureau of Prisons

• Decision Date: 28 July 2006
• Docket Number: No. 06-12425-BC.,06-12425-BC.
• Citation: 450 F.Supp.2d 705
• Parties: Ronald HACKER, Petitioner, v. FEDERAL BUREAU OF PRISONS, Case Manager T.A. Perez, Counselor Billingsley, Case Manager Maksimowicz, Unit Manager R. Esquibel, Case Manager Cheatham, and Warden H.J. Marberry, Respondents.
• Court: U.S. District Court — Eastern District of Michigan

450 F.Supp.2d 705

Ronald HACKER, Petitioner, v. FEDERAL BUREAU OF PRISONS, Case Manager T.A. Perez, Counselor Billingsley, Case Manager Maksimowicz, Unit Manager R. Esquibel, Case Manager Cheatham, and Warden H.J. Marberry, Respondents.

No. 06-12425-BC.

United States District Court, E.D. Michigan, Northern Division.

July 28, 2006.

Ronald Hacker, Milan, MI, pro se.

OPINION AND ORDER DENYING PETITIONER'S MOTIONS FOR TEMPORARY RESTRAINING ORDER AND EVIDENTIARY HEARING, ORDERING RESPONDENT TO ANSWER, APPOINTING COUNSEL, AND SCHEDULING HEARING

LAWSON, District Judge.

This matter is before the Court on the petitioner's motions for preliminary injunction, temporary restraining order, and evidentiary hearing. The petitioner, Ronald Hacker, is an inmate presently confined at the Federal Correctional Institution in Milan, Michigan. He has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the validity of certain Bureau of Prisons (BOP) regulations that govern placement within BOP facilities in the course of the execution of his sentence. The petitioner pleaded guilty to a drug-related offense in 2002 and was sentenced to a prison term of 60 months, to be followed by three years of supervised release. He argues that he is entitled to serve the last six months of his custody term in a Community Corrections Center or halfway house. The respondents have not filed a response to the petitioner's pleadings or motions. For reasons explained below, the Court concludes that the motion for temporary restraining order and motion for evidentiary hearing will be denied, the respondents will be directed to respond to the motion for preliminary injunction, and the court will appoint counsel for the petitioner to assist in the development of the legal issues presented.

I.

The focus of the petitioner's habeas corpus claim is his eligibility to serve the last six months of his sentence in a halfway house. The petitioner explains that he was originally approved for a transfer to a halfway house in Youngstown, Ohio, to occur on September 23, 2006. However, he was informed on May 1, 2006 that the halfway house was full and would not be able to take him until February 2, 2007. Shortly thereafter, the Bureau of Prisons informed the petitioner that he could not transfer to the halfway house because he has medical problems and does not have hospitalization insurance. The petitioner's prison term is set to end on March 3, 2007. The habeas relief the petitioner requests is a transfer to serve the remainder of his sentence in a Community Corrections Center (CCC) or halfway house.

II.

The petitioner's challenge to the action of the Bureau of Prisons is based on a change in BOP regulations that occurred in 2005, implementing a Department of Justice policy that was articulated toward the end of 2002. At that time, the Bureau of Prisons issued regulations providing that it would only place prisoners in community confinement at the end of their sentences for a period not exceeding the ten percent of their sentences or six months, whichever was less.

Prior to December 13, 2002, the Bureau of Prisons (hereinafter "BOP") was vested with the authority to determine the location of an inmate's imprisonment pursuant to 18 U.S.C. § 3621(b), which states:

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).

Another statute describes the BOP's obligation to prepare prisoners for community re-entry by placing them in community confinement. It 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. The authority provided by this subsection may be used to place a prisoner in home confinement.

18 U.S.C. § 3624(c). Since the promulgation of the Sentencing Guidelines in 1987, the BOP considered CCCs to be penal or correctional facilities and therefore determined that the "imprisonment" portion of a sentence may be satisfied by confinement in a CCC. Consequently, for many years the BOP routinely honored judicial recommendations to place offenders in CCCs for an imprisonment portion of their sentences. See United States v. Serpa, 251 F.Supp.2d 988, 989 (D.Mass. 2003). Prisoners could be placed in CCCs for up to six months at the end of their prison terms, regardless of the total length of their sentences. Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 240 (3d Cir.2005).

However, after the issuance of a memorandum opinion on December 13, 2002 by the Attorney General's Office of Legal Counsel (hereinafter "OLC") and the subsequent publication of 28 C.F.R. § 570.20 and 28 C.F.R. § 570.21, the BOP no longer has the discretionary authority to place an offender in a CCC based upon criteria set forth under 18 U.S.C. § 3621(b). The memorandum opinion stated:

When an offender has received a sentence of imprisonment, the Bureau of Prisons does not have general authority, either upon the recommendation of the sentencing judge or otherwise[,] to place such an offender in community confinement at the outset of his sentence or to transfer him from prison to community confinement at any time BOP chooses during the course of his sentence.

(December 13, 2002 OLC Memorandum). The First and Eighth Circuits held that this policy change was contrary to the plain meaning of 18 U.S.C. §§ 3621 and 3624. See Elwood v. Jeter, 386 F.3d 842 (8th Cir.2004); Goldings v. Winn, 383 F.3d 17 (1st Cir.2004).

The petitioner challenges the validity and implementation of 28 C.F.R. § 570.20 and 28 C.F.R. § 570.21, which went into effect on February 14, 2005. The first of these regulations "provides the Bureau of Prisons' (Bureau) categorical exercise of discretion for designating inmates to community confinement. The Bureau designates inmates to community confinement only as part of pre-release custody and programming which will afford the prisoner a reasonable opportunity to adjust to and prepare for re-entry into the community." 28 C.F.R. § 570.20. "Community confinement" includes confinement in Community Corrections Centers, also known as halfway houses, as well as home confinement. Ibid. The second regulation provides that the Bureau of Prisons "will designate inmates to community confinement only as part of pre-release custody and programming, during the last ten percent of the prison sentence being served, not to exceed six months." The Bureau of Prisons will not designate a prisoner to community confinement for a longer period unless "specific Bureau programs allow greater periods of community confinement, as provided by separate statutory authority." 28 C.F.R. § 570.21.

The criticism of these regulations articulated in many of the cases is that they curtail the BOP's general discretion to place an inmate at a CCC at any time; instead, they limit CCC placement to the lesser of 10% of a prisoner's total sentence or six months, and only as part of a prerelease program. See Woodall, 432 F.3d at 240. Furthermore, the Third Circuit has held, and the petitioner argues, that the BOP is now foreclosed from applying the criteria in 18 U.S.C. § 3621(b) when determining placement in a CCC generally due to the BOP's now limited authority to make CCC placement decisions "categorically" despite the nature of an inmate's individualized circumstances. Id. at 244. The petitioner argues that the BOP wrongly told him that he could be placed in a CCC for no more than ten percent of his sentence, and therefore it "categorically removed it's [sic] ability to, consider Plaintiff under the explicit factors set forth by Congress in Section 3621(b) for making placement and transfer determinations to a Community Correction Center." Petition at 6. He also argues that he pleaded guilty before the regulations were issued, at a time when the BOP was free to exercise its discretion to designate inmates to serve any portion of their sentences in CCCs.

The petitioner seeks an order restraining the BOP from imposing these regulations as they relate to the execution of his sentence. He asserts that an injunction is necessary because his release date is rapidly approaching; and he has been notified by the BOP that he will be denied the opportunity to be transferred to a CCC. Consequently, it is the petitioner's position that he will be subjected to imminent and irreparable harm.

III.

"The BOP's change in policy regarding CCC designation has resulted in a stream of lawsuits in federal district courts throughout the nation," and "courts have been...