Murdock v. Gutierrez
| Citation | 631 F.Supp.2d 758 |
| Decision Date | 24 July 2007 |
| Docket Number | Civil Action No. 3:06cv105. |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | Seth MURDOCK, Petitioner, v. Dominic A. GUTIERREZ, Respondent. |
Seth Murdock, Morgantown, WV, pro se.
Betsy Steinfeld Jividen, U.S. Attorney's Office, Wheeling, WV, for Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the Report and Recommendation of United States Magistrate Judge James E. Seibert. By Standing Order entered on March 24, 2000, this action was referred to Magistrate Judge Seibert for submission of proposed report and a recommendation ["R & R"]. Magistrate Judge Seibert filed his R & R on May 2, 2007 [Doc. 22]. In that filing, the magistrate judge recommended that this Court grant the petitioner's request for relief [Doc. 22].
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the petitioner's right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.1984). Here, objections to Magistrate Judge Seibert's R & R were due by May 16, 2007, within ten (10) days after being served with a copy of the R & R pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The Government, by counsel, timely filed its Objections [Doc. 23] on May 14, 2007. Accordingly, this Court will conduct a de novo review only as to the portions of the report and recommendation to which the parties objected. The remaining portions of the report and recommendation to which no objections have been filed will be reviewed for clear error.
Petitioner initiated this case on October 5, 2006, by filing an Application for Habeas Corpus [Doc. 1] pursuant to 28 U.S.C. § 2241, in which he seeks an order directing the Bureau of Prisons ("BOP") to transfer him to a Community Corrections Center ("CCC")1 for the last six months of his term of imprisonment. On October 16, 2006, the petitioner paid the required $5.00 filing fee [Doc. 6]. On November 7, 2006, Magistrate Judge James E. Seibert made a preliminary review of the file and determined that summary dismissal was not warranted at that time [Doc. 7]. Consequently, the respondent was directed to file an answer to the petition and did so on December 7, 2006 [Doc. 9]. The petitioner filed a reply brief on December 26, 2006 [Doc. 10].
On February 20, 2007, the petitioner filed an Emergency Motion for Summary Judgment [Doc. 12], which he later amended on February 28, 2007 [Doc. 13]. The respondent did not file a response to the petitioner's Motion. On March 6, 2007, Magistrate Judge Seibert reviewed the petitioners' Motion and determined that additional information was needed [Doc. 14]. Accordingly, the respondent was directed to file the necessary information and did so on March 16, 2007 [Doc. 16]. On March 15, 2007, petitioner filed a Notice [Doc. 15] regarding a recent decision by the Tenth Circuit Court of Appeals pertinent to the issue raised in this action.
This matter is now before the Court for consideration of Magistrate Judge Seibert's report and recommendation.
On June 12, 2003, the petitioner was sentenced in the United States District Court for the Eastern District of Michigan to a twenty-seven (27) month term of confinement for Possession of False Papers to Defraud the United States in violation of 18 U.S.C. §§ 2 and 1002. Petitioner was also sentenced to three years supervised release. On July 7, 2006, the petitioner's supervised release was revoked because he left the jurisdiction of the Court without permission. As a result, the petitioner was designated to the Federal Correctional Institution in Morgantown (FCI Morgantown), West_Virginia. Assuming good time credit, the petitioners' projected release date is September 5, 2007.
On February 12, 2007, the BOP reviewed the petitioner's eligibility for CCC placement. Upon review, the BOP determined that the petitioner met the qualifications for CCC placement and recommended that petitioner be transferred to a CCC for the last 10% of the time served on his sentence, or on July 21, 2007; in other words, the last 46 days of his sentence served.
Petitioner raises the following ground in his Application for Habeas Corpus: (1) The Bureau of Prisons' policy of transferring prisoners to a CCC for the last 10% of their term of imprisonment has been ruled unconstitutional.
The Government contends that the petition should be dismissed because:
(1) Petitioner has failed to exhaust his administrative remedies;
(2) The facts of the complaint are not yet ripe for review;
(3) The February 2005 Rules are valid and entitled to substantial deference; and
(4) The Bureau properly exercised its discretion in a categorical manner by limiting placement in CCC's to the last ten percent of an inmate's sentence served, not to exceed six months.
Prior to December 2002, the BOP had a policy of placing prisoners in a CCC for up to six months, regardless of the total length of the inmate's sentence. See BOP Program Statement 7310.04. However, on December 13, 2002, the Office of Legal Counsel for the Department of Justice issued a memorandum stating that this practice was inconsistent with 18 U.S.C. § 3624(c) which, in its opinion, limited an inmate's placement in a CCC to the lesser of six months or ten percent of the inmate's sentence. 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.
The BOP adopted the Office of Legal Counsel's interpretation of the statute, and numerous habeas petitions challenging the December 2002 Policy were filed. The First and Eighth Circuits, as well as many district courts,2 found the policy 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.
In response to those decisions, the BOP created new regulations in 2005 governing the placement of inmates in CCCs. These regulations state that the BOP was engaging in a "categorical exercise of discretion" and choosing to "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. The new regulation expressly prohibits placement of prisoners in CCCs prior to the pre-release phase of imprisonment and provides:
When will the Bureau designate inmates to community confinement?
(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 programs allow greater periods of community confinement, as provided by separate statutory authority (for example, residential substance abuse treatment program ... or shock incarceration program) ...
28 C.F.R. § 570.21. (Emphasis added)
It is this regulation which prompts the petitioner's habeas challenge in the instant case.
The petitioner admits that he has not exhausted his administrative remedies alleging that raising his claim through the internal grievance system would be moot because the issues raised in the petition can only be resolved in the United States District Court. Federal inmates generally are required to exhaust their administrative remedies prior to filing a § 2241 petition. See, e.g., Martinez v. Roberts, 804 F.2d 570 (9th Cir.1986); Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir.1996); Colton v. Ashcroft, 299 F.Supp.2d 681 (E.D.Ky.2004). However, a number of courts have found that requiring inmates to challenge the BOP's policy regarding placement in a CCC through the administrative process would be futile. See, e.g., Fagiolo v. Smith, 326 F.Supp.2d 589, 590 (M.D.Pa.2004) (...
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