Jaworski v. Gutierrez

• Decision Date: 23 August 2007
• Docket Number: Civil Action No. 5:06CV157.
• Citation: 509 F.Supp.2d 573
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Martin JAWORSKI, Petitioner, v. Dominic A. GUTIERREZ, Respondent.

509 F.Supp.2d 573

Martin JAWORSKI, Petitioner, v. Dominic A. GUTIERREZ, Respondent.

Civil Action No. 5:06CV157.

United States District Court, N.D. West Virginia.

August 23, 2007.

Martin Jaworski, Morgantown, WV, Pro se.

Betsy Steinfeld Jividen, U.S. Attorney's Office, Wheeling, WV, for Respondent.

MEMORANDUM OPINION AND ORDER GRANTING AS FRAMED APPLICATION FOR HABEAS CORPUS

FREDERICK P. STAMP, JR., District Judge.

On December 14, 2006, the petitioner, Martin Jaworski, appearing pro se,¹ filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking an order directing the Bureau of Prisons ("BOP") to transfer him to a Community Corrections Center ("CCC")² for the last six months of his term of imprisonment. This Court referred the application to United States Magistrate Judge James E. Seibert for an initial review and submission of proposed findings of fact and recommendation pursuant to Local Rule of Prisoner Litigation Procedure 83.09.

On December 14, 2006, the petitioner paid the required $5.00 filing fee. By order, entered on December 27, 2006, the Court directed the respondent to answer the petition. On January 26, 2007, the respondent filed a response to the order to show cause and memorandum in support of motion to dismiss. Attached to the response, the respondent filed two exhibits. The exhibits include a declaration of Clarissa Greene with a "SENTRY computer-generated Public Information Inmate Data" regarding the petitioner and a declaration of Lori Lindsay. On January 29, 2007, the respondent filed an amended response to the order to show cause and memorandum in support of motion to dismiss. On February 13, 2007, the petitioner filed a reply brief.

On February 14, 2007, the magistrate judge entered a report finding that the issues the petitioner raised were not ripe for adjudication and recommending that the petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be denied and dismissed without prejudice. The magistrate judge also informed the parties that if they objected to any portion of this report, they must file written objections within ten days after being served with copies of this report. On March 2, 2007, the petitioner filed objections to this report.

Pursuant to 28 U.S.C. § 636(b)(1), this Court reviews de novo those portions of the magistrate judge's findings to which an objection is made. But for intervening events, this Court would affirm the magistrate judge's determination that the application should be dismissed because the issues are not ripe for review. However, on July 30, 2007, the petitioner filed the BOP's official referral form for his placement in CCC. (Doc. No. 10, Attach.1.) That form indicates that the petitioner has been recommended for CCC placement on October 26, 2007. Therefore, the issues raised in the petitioner's application for a writ of habeas corpus are now ripe for review. Because time is of the essence, this Court will address the merits of the application without referring this matter to the magistrate judge for further recommendation.

I. Facts

On November 17, 2004, the petitioner was sentenced in the United States District Court for the Northern District of Ohio to a 43-month term of incarceration followed by a two-year term of supervised release for mail fraud in violation of 18 U.S.C. § 1341. The petitioner was designated to the Federal Correctional Institution in Morgantown, West Virginia ("FCI Morgantown") on January 4, 2005. (Doc. No. 5-3.) If this Court assumes that good time credit will be given, the petitioner's projected release date is February 16, 2008.

On May 7, 2007, after evaluating the petitioner's eligibility for CCC placement, the BOP recommended the petitioner for transfer to such a facility. (Doc. No. 10.) The BOP's recommended transfer date, October 26, 2007, marks the final 113 days of the petitioner's sentence served, and accounts for the last ten percent of the time served on his sentence. (Doc. No. 10, Attach.1.)

II. Contentions of the Parties

The petitioner raises the following ground in his application for writ of habeas corpus:

(1) The BOP's policy of limiting inmates' CCC placements to the last ten percent of their terms of imprisonment has been ruled unconstitutional.

The Government contends that the petition should be dismissed because:

(1) The petitioner has failed to exhaust his administrative remedies;

(2) This Court lacks subject matter jurisdiction under 28 U.S.C. § 2241;

(3) The issues the petitioner raises are not yet ripe for adjudication;

(4) The 2005 Rules are a lawful exercise of the BOP's broad statutory discretion to designate an inmate's place of imprisonment;

(5) The BOP properly exercised its discretion by categorically limiting placement in CCCs to the final ten percent of an inmate's sentence served, not to exceed six months.

The United States District Court for the Northern District of West Virginia, in an unpublished opinion by Judge John Preston Bailey, Murdock v. Gutierrez, No. 3:06-CV-105, 2007 WL 2193592 (N.D.W.Va. July 24, 2007), addressed the same issues as the parties raise in this case, with the exception of the jurisdictional issue, which was not raised in Murdock. In Murdock, the petitioner was sentenced to 27-months of imprisonment. The BOP recommended that the petitioner be transferred to a CCC for only the last 46 days of his confinement period. This period represented the final ten percent of the time served on the petitioner's sentence. The petitioner challenged the recommended time for CCC placement in a petition for writ of habeas corpus, arguing that the BOP's categorical policy of transferring prisoners to a CCC for the last ten percent of their prison terms was unconstitutional. The court determined that the BOP's regulations governing CCC placements contravened congressional intent regarding prisoner placement, as expressed in 18 U.S.C. § 3621(b), and were therefore invalid to the extent that the regulations limited placement of the petitioner in a CCC to the lesser of ten percent or six months of his sentence without considering the factors Congress enumerated in the statute. Because the issues in Murdock are identical to those in this case — with the already noted exception of the respondent's jurisdictional challenge — this order will closely follow the analysis set forth in Murdock.

III. Historical Background

The BOP's practice prior to December 2002 was to place inmates in a CCC for six months, without considering the full duration of an inmate's sentence. See BOP Program Statement 7310.04. On December 13, 2002, the Office of Legal Counsel for the Department of Justice ("OLC") determined that the relevant statute, 18 U.S.C. § 3624(c), limited an inmate's placement in a CCC to the lesser of six months or, ten percent of the inmate's full sentence and that the BOP's policy was therefore inconsistent with the statutory requirements. Section 3624(c) provides as follows:

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.

28 U.S.C. § 3624(c).

Based upon the OLC's interpretation of the statute, the BOP, in December 2002 adopted a revised policy for placing prisoners in CCCs. Under the 2002 policy, inmates were eligible for CCC placement for the lesser of the last six months or ten percent of their sentence; subsequently, numerous petitioners filed challenges to the 2002 policy, petitioning the courts for writs of habeas corpus. The United States Courts of Appeals for the First and Eighth Circuits, as well as many federal district courts,³ held the BOP's policy invalid as contrary to the plain meaning of 18 U.S.C. § 3621(b) which states:

The Bureau 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.

18 U.S.C. § 3621(b).

The BOP responded to these decisions in 2005 by adopting revised regulations to govern inmates' placements in CCCs ("2005 Rules"). Engaging in what it termed a "categorical exercise of discretion," the BOP stated that it would henceforth "designate inmates to [CCC] confinement ... during the last ten percent of the prison sentence being served not to exceed six months." 28 C.F.R. § 570.20-21. Under its new regulations, however, the BOP expressly prohibits placing prisoners in CCCs before the prerelease phase of imprisonment and provides:

(a) The Bureau 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.

(b) We may exceed the time-frames only when specific Bureau...