Jones v. Zenk

• Decision Date: 06 July 2007
• Docket Number: Civil Action No. 1:06-CV-2594-RWS-GGB.
• Parties: Devon A. JONES, Petitioner, v. Michael ZENK, Warden, Respondent.
• Court: U.S. District Court — Northern District of Georgia

Page 1289

495 F.Supp.2d 1289

Devon A. JONES, Petitioner, v. Michael ZENK, Warden, Respondent.

Civil Action No. 1:06-CV-2594-RWS-GGB.

United States District Court, N.D. Georgia, Atlanta Division.

July 6, 2007.

Order Denying Reconsideration July 24, 2007.

DeVon A. Jones, Plaintiff Pro Se.

Alonzo H. Long, Office of United States Attorney, Atlanta, GA, for Defendant.

ORDER

STORY, District Judge.

Petitioner, DeVon A. Jones, an inmate at the Atlanta Federal Prison Camp in Atlanta, GA ("FPC-Atlanta"), brought this habeas corpus action pursuant to 28 U.S.C. § 2241 challenging a Federal Bureau of Prisons ("BOP") regulation that prohibits the placement of inmates in home confinement or in Residential Reentry Centers ("RRCs"), formerly known as Community Correction Centers ("CCCs"), prior to the later of the final 10% of the prisoner's total sentence or the final six months of the prisoner's sentence. See 28 C.F.R. § 570.21 (hereinafter referred to as the "RRC Placement Rule"). This case comes before the Court on the Final Report and Recommendation of Magistrate Judge Gerrilyn G. Brill, who has recommended that the habeas petition be denied. (See Final Rep. & Rec. of April 9, 2007[7].) Because the Court concludes that (1) 28 U.S.C. § 2241 provides an appropriate vehicle for Petitioner's challenge to the RRC Placement Rule; (2) Petitioner's failure to exhaust administrative remedies is judicially waived for futility; (3) Petitioner's challenge to the RRC Placement Rule under the Due Process and Equal Protection Clauses of the Fifth Amendment fails as a matter of law; and (4) the RRC Placement Rule is not based on a permissible construction of 18 U.S.C. § 3621(b), the Court adopts the Magistrate Court's Report and Recommendation in part, declines to adopt it in part, grants Petitioner's habeas petition, and enjoins the further enforcement of 28 C.F.R. § 570.21(a).¹

Background

I. Facts²

On June 29, 2006, Petitioner was convicted in the United States District Court for the Northern District of Georgia of one count of conspiracy to devise a scheme or artifice to defraud by mail fraud, twelve counts of mail fraud, and two counts of wire fraud. United States v. Jones, No. 1:05-CR-611-1-TWT (filed Dec. 20, 2005). The Honorable Thomas W. Thrash, Jr. sentenced Petitioner to a total of twenty-one months in prison, to be followed by three years of supervised release. Id. After ordering Petitioner to be committed to the BOP's custody, Judge Thrash recommended Petitioner's prison designation to "be close to the Atlanta area." Id.

Petitioner began to serve his sentence at the FPC-Atlanta on September 11, 2006. Petitioner has a full-term release date of June 9, 2008, and a projected statutory release date of March 19, 2008. Petitioner states that, under the current, but allegedly invalid RRC Placement Rule, he is not eligible for placement into an RRC until January 24, 2008.

II. Petitioner's Challenge

Relying on Wedelstedt v. Wiley, 477 F.3d 1160 (10th Cir.2007), Levine v. Apker, 455 F.3d 71 (2d Cir.2006), Fults v. Sanders, 442 F.3d 1088 (8th Cir.2006), and Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir.2005), Petitioner contends that 28 U.S.C. § 570.21(a) is an invalid exercise of the BOP's rule-making authority because it is inconsistent with the requirement of 18 U.S.C. § 3621(b) that the BOP individually consider inmates based on five specified factors when making placement determinations. Petitioner also claims that the BOP's current policy violates his due process and equal protection rights. He requests that the Court declare the regulations unlawful, and seeks an injunctive remedy mandating that the BOP consider him for placement into an RRC.

In response, Respondent contends that the instant petition should be dismissed on the following grounds: (1) Petitioner's claims seeking to challenge the BOP's current policy are not cognizable in habeas corpus; (2) Petitioner has failed to exhaust his administrative remedies with respect to his claims; (3) Petitioner's request for a "back-end" placement in an RRC is not ripe for adjudication; and (4) Petitioner is not entitled under 18 U.S.C. § 3621(b) and 18 U.S.C. § 3624(b) to a transfer until the last 1.8 months of his sentence.

III. The Magistrate Court's Report and Recommendation

After thoroughly considering the arguments raised by both parties, the Magistrate Court agreed with Petitioner that his claims were cognizable in habeas corpus under 28 U.S.C. § 2241. It reasoned that, because Petitioner's claim was an attack on the execution of his sentence, it was properly brought pursuant to § 2241. (See Mag. Ct. R & R[7] at 10.)

Turning to the exhaustion issue, the Court noted that a split had emerged within this district concerning whether a § 2241 habeas petitioner's failure to exhaust administrative remedies may be excused for futility. Invoking the Eleventh Circuit's characterization of the exhaustion requirement in § 2241 cases as "jurisdictional," as opposed to "prudential," the Court concluded that the exhaustion requirement was not subject to judicial waiver in this circuit. Thus, the Court concluded it lacked jurisdiction to entertain the petition. (Id. at 14.) The Court noted, however, that were the exhaustion requirement subject to judicial waiver, it would recommend excusing Petitioner's failure to exhaust due to futility. Under that assumption, it went on to address the merits of the petition. (Id. at 14 n. 7.)

The Magistrate Court then rejected Respondent's argument that Petitioner's challenge to the RRC Placement Rule was not ripe, finding that Petitioner was immediately subject to 28 C.F.R. § 570.21(a), and that "the issues are currently fit for review and the withholding of judicial review at this time could potentially cause a hardship on Petitioner." (Id. at 16.)

Turning finally to the merits, the Court rejected Petitioner's due process challenge, finding that § 3624(c) "does not create a protected liberty interest to any pre-release treatment." (Id. at 18.) The Court also rejected Petitioner's equal protection challenge, finding that "Petitioner has failed to allege any facts establishing that the BOP's application of the Rule to his sentence amounted to unfair treatment compared to other prisoners who were otherwise similarly situated." (Id. at 19 (citations and quotations omitted).) Finally, the Court concluded that the Rule was a valid exercise of the BOP's discretionary authority under § 3621(b) and was owed deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Having carefully reviewed the Magistrate Court's Report and Recommendation and the parties' responsive filings, the Court adopts it insofar as it concludes that (1) the instant petition is ripe for adjudication and (2) Petitioner's challenges to 28 C.F.R. § 570.21(a) under the Due Process and Equal Protection Clauses of the Fifth Amendment fail as a matter of law. The Court declines to adopt the remainder of the Report, and turns now to consider whether a writ of habeas corpus should issue.

Discussion

I. 28 U.S.C. § 2241 Provides the Appropriate Vehicle to Challenge the RRC Placement Rule

Before turning to the merits of the petition, the Court must first determine whether Petitioner, in pursuing his claims under 28 U.S.C. § 2241, has chosen an appropriate legal vehicle to challenge the RRC Placement Rule. After careful consideration, the Court concludes that Petitioner may seek the relief he requests in a § 2241 habeas petition.

The federal habeas statute provides that "the writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States...." 28 U.S.C. § 2241(c)(3). In its original form, "the federal habeas statute mirrored the common-law writ of habeas corpus, in that it authorized a single form of relief: the prisoner's immediate release from custody." Wilkinson v. Dotson, 544 U.S. 74, 85, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (Scalia, J., concurring); see also Preiser v. Rodriguez, 411 U.S. 475, 486, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (stating that the writ "has been accepted as the specific instrument to obtain release from [unlawful] confinement"). Congress, however, amended the statute to provide additionally that the habeas court "shall ... dispose of the matter as law and justice require." 28 U.S.C. § 2243. Invoking this "broader remedial language" of § 2243, courts have construed federal statutory habeas to offer forms of relief in addition to immediate release. Wilkinson, 544 U.S. at 85, 125 S.Ct. 1242 (Scalia, J., concurring). For example, a § 2241 writ of habeas corpus may issue to shorten a prisoner's sentence, Preiser, 411 U.S. at 489, 93 S.Ct. 1827, or more pertinent here, to effect a "quantum change in the level of custody," Graham v. Broglie, 922 F.2d 379, 381 (7th Cir.1991); see also United States v. Jalili, 925 F.2d 889, 893 (6th Cir.1991) (challenges to the place of imprisonment, and not to the fact of federal conviction, are properly brought under § 2241).

The issue concerning this Court is how far § 2243 stretches the common-law roots of § 2241. Although Preiser and Graham lend support to Petitioner, those cases differ from Petitioner's in a material respect. In Preiser and Graham, the petitioners sought a court order compelling a change in the length of a prisoner's sentence or a change in the level of his custody. But here, Petitioner seeks only consideration for such a change under a new set of administrative procedures.

The Supreme Court has recently reiterated the distinction between relief at the "core of habeas corpus" — which may only be pursued in habeas, see Preiser v. Rodriguez, 411 U.S. at 486, 93 S.Ct. 1827 — and lesser forms of relief, which may generally be pursued via civil rights legislation such as 42 U.S.C. § 1983, and as to which it is less clear whether...