Monahan v. Winn, No. CIV.03-40075-NG, CIV.03-10308-NG, CRIM.01-10385-NG, CIV.03-40139-NG.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtGertner
Citation276 F.Supp.2d 196
Decision Date12 August 2003
Docket NumberNo. CIV.03-40075-NG, CIV.03-10308-NG, CRIM.01-10385-NG, CIV.03-40139-NG.
PartiesDennis F. MONAHAN, Petitioner, v. David L. WINN, Respondent. Manuel Sardinha, Petitioner, v. United States of America, Respondent. United States of America, v. Gail Costello and Larry Silveira. Julio A. Pereira, Petitioner, v. David L. Winn, Respondent.
276 F.Supp.2d 196
Dennis F. MONAHAN, Petitioner,
v.
David L. WINN, Respondent.
Manuel Sardinha, Petitioner,
v.
United States of America, Respondent.
United States of America,
v.
Gail Costello and Larry Silveira.
Julio A. Pereira, Petitioner,
v.
David L. Winn, Respondent.
No. CIV.03-40075-NG, CIV.03-10308-NG, CRIM.01-10385-NG, CIV.03-40139-NG.
United States District Court, D. Massachusetts.
August 12, 2003.

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COPYRIGHT MATERIAL OMITTED

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George B. Henderson, United States Attorney's Office, Boston, MA, for David I. Winn.

Dennis F. Monahan, Ayer, MA, Pro se.

Peter B. Krupp, Laurie and Krupp, LLP, Boston, MA, for Dennis F. Monahan, FMC Devens.

MEMORANDUM RE: BUREAU OF PRISONS' NEW COMMUNITY CONFINEMENT POLICY

GERTNER, District Judge.


I. INTRODUCTION

Just before Christmas 2002, after many judges and court personnel had left for the

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holidays, the Bureau of Prisons ("BOP") faxed a letter to all federal judges. In the letter, the BOP announced that designations of offenders to community confinement were forbidden as a matter of law, notwithstanding the long-established BOP policy and practice of adopting judicial recommendations to place nonviolent inmates in such facilities to serve short terms of imprisonment. The BOP also announced its intention to abandon its practice of transferring offenders to community confinement for the last six months of their sentences; it would instead limit such transitions to ten percent of the total sentence, not to exceed six months.

The genesis of this legal epiphany was an opinion issued on December 13, 2002, by the Department of Justice Office of Legal Counsel to the United States Deputy Attorney General ("the DAG Opinion") that characterized BOP placement of prisoners into community confinement as "unlawful." A position that the DOJ had argued around the country in its role as an adversary in the criminal justice system was now foisted on the BOP as established doctrine, by virtue of the DOJ's role as counsel to the Bureau.

This literally overnight shift in BOP policy deprived judges of an important tool for sentencing a most "difficult" class of offenders: those on the borderline between probation and incarceration. More significant, the policy change, and the precipitous way it was imposed, wreaked havoc on defendants at various stages in their federal criminal cases. Offenders already in community confinement with more than 150 days remaining on their sentences were whisked away to secure BOP facilities. Recently-sentenced offenders who had been designated to surrender to community confinement facilities instead were required to report to secure facilities. Defendants who had pleaded guilty or had been convicted, but had not yet been sentenced, found their expectations about the likely nature of their sentences radically upended. Offenders who had been promised transitional placements in community confinement six months prior to the conclusion of their sentences found their transition dates postponed.

Cases involving defendants in many of the above-described postures are currently pending before me, and I issue this Memorandum to address the issues common to all of them.

Numerous courts across the country have found the new BOP policy to be legally invalid on a variety of grounds. See, e.g., Iacaboni v. United States, 251 F.Supp.2d 1015 (D.Mass.2003) (Ponsor, J.); Pearson v. United States, 265 F.Supp.2d 973 (E.D.Wis.2003); Tipton v. Federal Bureau of Prisons, 262 F.Supp.2d 633 (D.Md. 2003); Byrd v. Moore, 252 F.Supp.2d 293 (W.D.N.C.2003); United States v. Serpa, 251 F.Supp.2d 988 (D.Mass.2003) (Young, C.J.); Ferguson v. Ashcroft, 248 F.Supp.2d 547 (M.D.La.2003); Howard v. Ashcroft, 248 F.Supp.2d 518 (M.D.La.2003); Ashkenazi v. Attorney General, 246 F.Supp.2d 1 (D.D.C.2003); United States v. Tkabladze, Nos. CV 03-01152, CR 02-00434(A) (C.D.Cal. May 16, 2003) (slip op.); Mallory v. United States, 2003 WL 1563764 (D.Mass. Mar.25, 2003) (Woodlock, J.); United States v. West, 2003 WL 1119990 (E.D.Mich. Feb.20, 2003); McDonald v. Federal Bureau of Prisons, No. 03-CV-235 (N.D.Ga. Feb. 14, 2003); United States v. Canavan, 2003 WL 245226 (D.Minn. Jan.22, 2003).

I agree with the weight of this authority. Judge Ponsor's scholarly opinion in Iacaboni is particularly thorough and compelling, and I concur in the three key elements of his analysis. First, "the well-established practice of the BOP" of placing certain offenders in community confinement

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to serve some or all of their terms of imprisonment "was not and is not, even remotely `unlawful.'" Iacaboni, 251 F.Supp.2d at 1017-18. Second, "the BOP's manner of adopting this fundamental change, even assuming it had substantive merit, was improper" under the Administrative Procedure Act. Id. at 1018. Third, the retroactive application of this policy violates the Constitution. See id. Offender classification and assignment decisions made pursuant to this policy are therefore invalid, and the BOP retains the discretion to employ community confinement as it always did prior to December of 2002.

While there is no need for me to "reinvent the wheel" with this opinion, I will address new arguments that the government has advanced in defense of the BOP policy as its position and reasoning continue to evolve in response to Iacaboni and other cases.

II. CASES PENDING BEFORE THE COURT

The above-captioned cases, which involve offenders at various stages of criminal process, all implicate the BOP's new community confinement policy. I briefly summarize the posture of each case here in order to lend context to the broader discussion. Individual orders consistent with this opinion will issue (or have been issued) separately in each of the cases. To the extent that a case raises other matters, as in United States v. Silveira, separate opinions will issue on those matters, incorporating this memorandum by reference.

In general, the cases before me presently fit into three categories: The first category includes individuals who pleaded guilty or were convicted prior to the new BOP Policy, were sentenced and still awaiting surrender to community confinement facilities, pursuant to sentencing judge recommendations that the BOP had accepted (Dennis Monahan, Manuel Sardinha); the second includes individuals who pleaded guilty or were convicted prior to the new Policy, but were sentenced afterward (Gail Costello, Larry Silveira); and the third is comprised of individuals approaching the end of their imprisonment terms who had been designated for a community confinement facility, pursuant to longstanding BOP policy, only to have their designations abruptly changed (Julio Pereira).

A. Individuals Who Pleaded Guilty or Were Convicted Before the New Policy, Who Had Yet to Surrender to a Community Confinement Facility, Pursuant to Judicial Recommendations Adopted by BOP

1. Dennis Monahan

Dennis Monahan was sentenced in late 2002 in two cases, one in the District of New Hampshire for bankruptcy fraud (18 U.S.C. § 152), and one in the District of Massachusetts for forging the signature of a court officer (18 U.S.C. § 505). He was sentenced in the New Hampshire case to imprisonment for one year and one day1

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and sentenced in the Massachusetts case to imprisonment for 30 days, to be served concurrently with the New Hampshire sentence. Significantly, after careful consideration, judges of both courts recommended placement in community confinement.

In accordance with these recommendations, in early December 2002, Monahan and his counsel were notified that the BOP had designated Monahan to serve his sentence at Coolidge House. Then came the Christmas Eve missive, the new BOP Policy, and an order to Mr. Monahan that he report to FMC-Devens. In a turn of events that reflected the chaos following the BOP's precipitous policy change, Monahan, with a criminal history of I, was held in solitary confinement and lockdown for 38 days due to overcrowding (apparently attributable at least in part to the new BOP Policy).

On or around March 26, 2002, Monahan filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the new BOP Policy and his designation to FMC-Devens. Apparently, due to some confusion concerning receipt of the $5 filing fee, the file languished in the clerk's office for several months before reaching the Court.2 On June 20, 2003, I issued a Temporary Restraining Order ("TRO") requiring the BOP to re-designate Mr. Monahan under its pre-December 2002 criteria. Shortly thereafter, Monahan was redesignated to Coolidge House. The TRO was extended by consent of the parties. On July 30, 2003, I entered a Preliminary Injunction on terms identical to those in the TRO. This memorandum comprises the findings of fact and conclusions of law on which that preliminary injunction was based.

2. Manuel Sardinha

On October 30, 2002, Manuel Sardinha was sentenced to ten months imprisonment for three counts of filing false income tax returns (26 U.S.C. § 7206(1)) with a community confinement recommendation. In December of 2002, Sardinha learned that he had been designated by the BOP to self-surrender at Coolidge House. On December 30, 2002, Sardinha's counsel learned, to his surprise, that Sardinha had been redesignated to FMC-Devens pursuant to the new BOP policy.

On or around February 19, 2003,3 Sardinha filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 in which he challenged the BOP policy. While it is not entirely clear whether this action is more properly brought under 28 U.S.C. § 2255 or 28 U.S.C. § 2241, the government apparently does not dispute that the court can engage the merits of the community confinement issues under at least one of those two statutes. Cf. Iacaboni, 251 F.Supp.2d at

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1017 n. 1 (adjudicating the § 2255 claim of one of three petitioners, Mark Pandolfi, who had not yet surrendered to BOP custody, and noting...

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29 practice notes
  • Goldings v. Winn, No. 03-2633.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 9, 2004
    ...of his term, to which he had been assigned before the OLC Memorandum. However, as the district court explained in Monahan v. Winn, 276 F.Supp.2d 196, 211 n. 11 (D.Mass.2003), "[t]he Kennedy analysis... recognized that § 3624(c) did not require that the BOP do anything until Kennedy met......
  • Dismas Charities, Inc. v. U.S. Dept. of Justice, No. 03-6502.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 11, 2005
    ...or "nondiscretionary," and that the BOP policy, since binding, is not interpretative. See Monahan v. Winn, 276 F.Supp.2d 196, 213-14 (D.Mass.2003); McDonald v. Fed. Bureau of Prisons, No. 1:03-CV-235-RWS, 2003 U.S.Dist. LEXIS 14035, at *18-19 (N.D.Ga.Feb.14, 2003). The argument mi......
  • Cohn v. Federal Bureau of Prisons, No. 04 Civ. 0192(WHP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 10, 2004
    ...No. 03 Civ. 8205(KMW), 2003 WL 23181269 (S.D.N.Y. Oct. 31, 2003) (bench decision) (Eshkanazi Decl. Ex. E) (same); Monahan v. Winn, 276 F.Supp.2d 196 (D.Mass.2003) (same); Tipton v. Fed. Bureau of Prisons, 262 F.Supp.2d 633 (D.Md.2003) (same); Iacaboni v. United States, 251 F.Supp.2d 1015 (D......
  • Colton v. Ashcroft, No. CIV.A. 03-554-JBC.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • January 15, 2004
    ...F.3d 40, 43 (2d Cir.2001)). The PLRA exhaustion requirement does not apply to 28 U.S.C. § 2241 writs of habeas corpus. Monahan v. Winn, 276 F.Supp.2d 196 (D.Mass.2003) (addressing a challenge to the BOP's new CCC policy of no longer designating offenders to CCCs, the court held that the PLR......
  • Request a trial to view additional results
28 cases
  • Colton v. Ashcroft, No. CIV.A. 03-554-JBC.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • January 15, 2004
    ...F.3d 40, 43 (2d Cir.2001)). The PLRA exhaustion requirement does not apply to 28 U.S.C. § 2241 writs of habeas corpus. Monahan v. Winn, 276 F.Supp.2d 196 (D.Mass.2003) (addressing a challenge to the BOP's new CCC policy of no longer designating offenders to CCCs, the court held that the PLR......
  • Jones v. Zenk, Civil Action No. 1:06-CV-2594-RWS-GGB.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • July 6, 2007
    ...Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir.2004) (recognizing that exhaustion in § 2241 may be judicially waived); Monahan v. Winn, 276 F.Supp.2d 196, 204-05 (D.Mass.2003) (reviewing challenge to the BOP policy despite failure to exhaust); Ferguson v. Ashcroft, 248 F.Supp.2d 547, 563 (M.......
  • Fox v. Lappin, No. CIV.A. 05-40106-WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 17, 2006
    ...prerequisites — "notice and comment" rulemaking requirements — in adopting any legislative rule. 5 U.S.C. § 553; see Monahan v. Winn, 276 F.Supp.2d 196, 212-13 (D.Mass.2003) (Gertner, Review of an individual Bureau classification decision, however, is nonetheless available pursuant to secti......
  • Kane v. Winn, No. CIV.A.03-40116-WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • May 27, 2004
    ...decision. For an excellent discussion of the problematic distinction between legislative and interpretive rules, see Monahan v. Winn, 276 F.Supp.2d 196, 212-15 (D.Mass.2003) (Gertner, The Court also assumes for purposes of decision that, in this case at least, the Warden is an appropriate n......
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