Serrato v. Clark

• Decision Date: 09 May 2007
• Docket Number: No. 06-15167.,06-15167.
• Citation: 486 F.3d 560
• Parties: Nora Luz SERRATO, Petitioner-Appellant, v. Schelia A. CLARK; Harley G. Lappin, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.3d 560

Nora Luz SERRATO, Petitioner-Appellant, v. Schelia A. CLARK; Harley G. Lappin, Respondents-Appellees.

No. 06-15167.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2006.

Filed May 9, 2007.

Stephen R. Sady, Federal Public Defender, Portland, OR, argued the cause for the appellant.

Andrew Y.S. Cheng, United States Attorney's Office, San Francisco, CA, argued the cause for the appellee. Kevin V. Ryan and Joann Swanson, United States Attorney's Office, San Francisco, CA, were on the briefs.

Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding. D.C. No. CV-05-03416-CRB.

Before: JEROME FARRIS, RICHARD R. CLIFTON, and CARLOS T. BEA, Circuit Judges.

BEA, Circuit Judge.

We are called upon to decide whether the Federal Bureau of Prisons ("BOP") improperly terminated its early-release correctional program for penal inmates known variously as the shock incarceration program, intensive confinement center or ICC program, and boot camp (hereinafter, "boot camp"). Boot camp was established to provide a highly regimented schedule with strict discipline and physical training for inmates. By promoting personal development, self-control, and discipline, the program aimed to reduce recidivism and control prison populations and costs. Upon successful completion of the program, inmates were eligible to have BOP reduce their sentence by up to six months. In 2004, citing budgetary constraints and a study which showed the program ineffective to reduce recidivism, BOP terminated the program.

Before the boot camp program was terminated, Nora Luz Serrato pleaded guilty to, and was convicted of, possession of methamphetamine with intent to distribute. Serrato wanted to attend boot camp. At sentencing, the judge recommended that Serrato be placed in the program. BOP informed the judge that Serrato's initial sentence was too long for her to be placed directly in the program, so the judge reduced her sentence to make Serrato eligible for direct placement to boot camp. Serrato reported to prison on November 5, 2004, and shortly thereafter requested transfer to boot camp. She was soon informed that the program had been terminated and that no such transfer was possible. Faced with the prospect of losing the six-month sentence reduction boot camp held out, Serrato filed a petition for writ of habeas corpus, claiming BOP's decision to terminate boot camp violated the Administrative Procedure Act ("APA"), the separation of powers, the prohibition on Ex Post Facto punishment, and our holdings on retroactive agency action. The district court denied Serrato's petition. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Background

I. Federal Boot Camp

In 1990, Congress passed 18 U.S.C. § 4046,"Shock incarceration program," which provides:

(a) The Bureau of Prisons may place in a shock incarceration program any person who is sentenced to a term of imprisonment of more than 12, but not more than 30, months, if such person consents to that placement.

(b) For such initial portion of the term of imprisonment as the Bureau of Prisons may determine, not to exceed 6 months, an inmate in the shock incarceration program shall be required to—

(1) adhere to a highly regimented schedule that provides the strict discipline, physical training, hard labor, drill, and ceremony characteristic of military basic training; and

(2) participate in appropriate job training and educational programs (including literacy programs) and drug, alcohol, and other counseling programs.

(c) An inmate who in the judgment of the Director of the Bureau of Prisons has successfully completed the required period of shock incarceration shall remain in the custody of the Bureau for such period (not to exceed the remainder of the prison term otherwise required by law to be served by that inmate), and under such conditions, as the Bureau deems appropriate.

See Crime Control Act of 1990, Pub.L. No. 101-647, § 3001 (1990), 104 Stat. 4789, 4915. Under 28 C.F.R. § 524.32, an inmate who successfully completes the program is eligible to have BOP reduce his or her sentence by up to six months.¹ Regulations provide that designation of inmates to boot camp was to be made "in accordance with sound correctional judgment and the availability of Bureau resources." Id. § 524.31. Notably, congressional appropriations for the federal prison system did not earmark or allocate specific funds for boot camp. See, e.g., Consolidated Appropriations Act, 2004, Pub.L. No. 108-199, 118 Stat. 3, 53-55.

Boot camp was terminated in late 2004. The decision was communicated in a January 5, 2005, "Message to All Staff" signed by Respondent BOP Director Harley G. Lappin. The memorandum stated that, due to budget pressures and research showing that boot camp did not reduce recidivism, BOP was terminating the program. Director Lappin sent a letter on January 14, 2005, to federal judges, chief United States probation officers, federal public defenders, and United States Attorneys stating the same. Director Lappin also noted in the letter that inmates currently enrolled in the program could complete it and remain eligible for early release benefits, but that no new classes would be offered.

II. Serrato's Appeal

Serrato pleaded guilty to a federal count of possession of methamphetamine with intent to distribute, on May 5, 2003, in the United States District Court for the District of Oregon. She did not have a plea agreement. District Judge Anna Brown sentenced Serrato to 37 months imprisonment with five years supervised release on October 17, 2003, and recommended that BOP consider Serrato's eligibility for boot camp.

One month later, on November 17, 2003, BOP Regional Director Robert Haro wrote to Judge Brown "to provide designation information in response to the Court's recent recommendation that Ms. Nora Luz Serrato be placed at a Bureau of Prisons facility where she can participate in the Intensive Confinement Center (ICC) program." The letter stated that although Serrato had been classified as a minimum security level offender, BOP would not directly place Serrato in boot camp because her sentence exceeded the range of 12 to 30 months required for direct placement to boot camp. Rather, Serrato would be designated to the minimum security prison at the Federal Correctional Institution (FCI) in Dublin, California, and would be reviewed for transfer to boot camp when she was 24 months from release. See 28 C.F.R. § 524.31. Judge Brown then resentenced Serrato on September 10, 2004, to 30 months imprisonment with five years supervised release, and again recommended that BOP consider eligibility for boot camp.

BOP records did not accurately reflect Serrato's resentencing, however, and she was designated to report not to a federal prison with a boot camp facility, but to the FCI in Dublin, located in the Northern District of California. Serrato surrendered on November 5, 2004. Upon arrival, Serrato requested to be transferred to boot camp. Case Worker Linda Rodriguez informed Serrato that a Program Review would be scheduled in a few weeks. Rodriguez met with Serrato on November 17, 2004, and informed Serrato she "may be eligible" for boot camp. On November 22, 2004, Rodriguez learned that boot camp was being closed and no referrals were to be made, and she informed Serrato of the same.

On April 7, 2005, Serrato filed a motion to enforce the judgment or to grant 28 U.S.C. § 2255 habeas relief in the District of Oregon, where she had been sentenced. Judge Brown acknowledged that she had resentenced Serrato because of Regional Director Haro's letter: "[T]he Director advised Serrato would not be considered for transfer to bootcamp until she was 24 months from release. On September 10, 2004, therefore, the Court resentenced Serrato to 30 months imprisonment and amended its Judgment accordingly." The court, however, denied Serrato's motion on the grounds that Serrato's sentence was lawful and that claims related to the terms of Serrato's incarceration were properly brought only in the custodial court, the Northern District of California.

On August 23, 2005, Serrato filed a federal habeas petition in the Northern District of California, where she was incarcerated, claiming the government violated the statutory and constitutional provisions at issue in the present appeal. In a memorandum and order dated December 19, 2005, District Judge Charles Breyer held that Serrato had standing and denied the petition on the merits. The court held that BOP's termination of boot camp was within its statutory discretion and not reviewable under the APA, that the termination did not violate the APA's notice and comment procedures, and that the termination violated neither the Constitution's Ex Post Facto Clause, nor the retroactivity doctrine, nor the separation of powers. Judgment was entered the same day, December 19, 2005. Serrato filed this timely appeal January 17, 2006.

In the meantime, BOP had placed Serrato under consideration for a state boot camp program. On or around December 20, 2005, Serrato began a state boot camp program in Wisconsin. At that point, Serrato had already spent over a year in prison.

On January 4, 2006, Serrato filed a Federal Rule of Civil Procedure 60(b) motion in the District of Oregon to reopen her § 2255 motion. The district court reduced Serrato's term of supervised release from five to four years, and otherwise denied the motion. That decision is the subject of United States v. Serrato, No. 06-35274, ___ Fed.Appx. ___, 2007 WL 1417423 (9th Cir.2007), a related appeal decided in a memorandum disposition filed contemporaneously with this opinion.

Serrato completed the state boot camp program and was transferred to a community corrections center in Oregon on or around June 20, 2006. She spent over 19 months in prison. Serrato was released from custody into supervised...