Soto v. United States, Civil Action No. 12-2963 (RMB)

• Decision Date: 16 April 2013
• Docket Number: Civil Action No. 12-2963 (RMB)
• Parties: RICHARD SOTO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — District of New Jersey

RICHARD SOTO, Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

Civil Action No. 12-2963 (RMB)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: April 16, 2013

NOT FOR PUBLICATION

OPINION

APPEARANCES:

RICHARD SOTO, Petitioner pro se

JOHN ANDREW RUYMANN, AUSA

OFFICE OF THE U.S. ATTORNEY

BUMB, District Judge

Petitioner, Richard Soto, a federal prisoner confined at the Federal Correctional Institution in Fort Dix, New Jersey ("FCI Fort Dix"), at the time he filed this action, brings this habeas petition pursuant to 28 U.S.C. § 2241, challenging the decision by the Federal Bureau of Prisons ("BOP") to provide[Petitioner] with "insufficient" time in a Residential Re-entry Center ("RRC"), allegedly in violation of the Second Chance Act of 2007 ("SCA"). (Petition, pg. 1.)

Based on this Court's review of the pleadings and relevant record as provided by Respondent, this petition will be denied for lack of merit.

I. BACKGROUND

A. The Second Chance Act

Residential Re-Entry Center ("RRC") assignments are governed by 18 U.S.C. § 3624(c)(1), regularly referred to as the Second Chance Act. See, Second Chance Act, Pub. L. No. 110-199, effective April 9, 2008. In essence, the Act extended the maximum amount of time that the Bureau of Prisons ("BOP") may place an inmate in an RRC from 180 days to twelve months.

Section 3624(C):

(1) In General. The Director of the BOP shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. The authority provided by this subsection may be used to place a prisoner in home confinement....

. . .

(4) No limitations.-Nothing in this subsection shall be construed to limit or restrict the authority of the Director of the Bureau of Prisons under section 3621.

. . .

(6) Issuance of regulations. The Director of the Bureau of Prisons shall issue regulations pursuant to this subsection . . . which shall ensure that placement in a community correctional facility by the Bureau of Prisons is-

(A) conducted in a manner consistent with section 3621(b) of this title;

(B) determined on an individual basis; and

(C) of sufficient duration to provide the greatest likelihood of successful reintegration into the community.

18 U.S.C. § 3624(c).

Section 3621(b) states:

(b) Place of imprisonment. The Bureau of Prisons 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) title 28 . . .

. . . Any order, recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have nobinding effect on the authority of the Bureau under this section to determine or change the place of imprisonment.

Thus, pursuant to the Second Chance Act, each inmate's pre-release RRC decision must be analyzed and supported under these § 3621(b) factors.

The BOP issued regulations setting forth procedures for evaluating inmates' RRC placement decisions consistent with § 3621(b). See 28 C.F.R. §§ 570.20-570.22. For instance, 28 C.F.R. § 570.22 states:

"Inmates will be considered for pre-release community confinement in a manner consistent with 18 U.S.C. section 3621(b), determined on an individual basis, and of sufficient duration to provide the greatest likelihood of successful reintegration into the community, within the time-frames set forth in this part."

The time frames noted are set forth in section 570.21, which states:

(a) Community confinement. Inmates may be designated to community confinement as a condition of pre-release custody and programming during the final months of the inmate's term of imprisonment, not to exceed twelve months.

. . .

(c) Exceeding time-frames. These time-frames may be exceeded when separate statutory authority allows greater periods of community confinement as a condition of pre-release custody.

28 C.F.R. § 570.21.

In addition to the individual determination under 18 U.S.C. § 3621(b), a prisoner's participation in, or completion of,Inmate Skills Development programs within the institution is considered separately to determine if additional placement time is warranted as an incentive under 42 U.S.C. § 17541, the Federal prisoner reentry initiative. Section 17541 requires the BOP to "provide incentives for prisoner participation in skills development programs." Id. at § 17541(a)(1)(G). One such incentive may "at the discretion of the [BOP]" include "the maximum allowable period in a community confinement facility." Id. at § 17541(a)(2)(A).

B. Factual Background

On or about April 10, 2006, Petitioner was sentenced in the United States District Court for the Middle District of Pennsylvania, to 110 months imprisonment, with three years of supervised release, for his conviction of Distribution and Possession with Intent to Distribute Heroin, in violation of 21 U.S.C. § 841(a). (Respondent's Declaration of Tara Moran, Exhibit 1.) Petitioner's projected release date is September 12, 2013, assuming he receives all good conduct time available. (Moran Decl., Ex. 1.)

On February 6, 2012, Petitioner was designated to serve his prison term at FCI Fort Dix. Later that same month, on February 29, 2012, Petitioner's Unit Team conducted a Program Review for Petitioner. At that time, Petitioner was about 18 months fromhis projected release date in September 2013. On March 7, 2012, the Unit Team considered Petitioner for RRC placement based upon Petitioner's earlier Program Review. (Respondent's Declaration of Joanna Ellis, Attachments 1, 2, pg. 3.)

The Unit Team completed a RRC Consideration/ReConsideration form that outlined the following factors considered by the Unit Team in formulating a RRC start date for Petitioner: (1) the resources of the intended facility; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the sentencing court concerning the purpose of the imposed sentence or a recommended correctional facility for serving the imposed prison term; (5) any pertinent policy statement issued by the U.S. Sentencing Commission; and (6) whether the inmate completed (a) Inmate Skills Development programing, (b) non-residential Drug Abuse Treatment Program ("DAP"), or (c) Residential Drug Abuse Treatment Program ("RDAP"). (Ellis Decl., Attachment 1, pg. 1.) The Unit Team also considered Petitioner's need for services, public safety and the necessity of the BOP's population. Weighing all of these criteria, the Unit Team recommended that Petitioner receive 150 to 180 days RRC placement, noting that this "placement recommendation is ofsufficient duration to provide the greatest likelihood of successful re-integration into the community. (Id.)

The Unit Team's individualized determination for Petitioner's RRC placement reads as follows:

Inmate Soto is a 43-year old male convicted in the Middle District of Pennsylvania and sentenced to 110 months for Distribution and Possession with Intent to Distribute Heroin. He has limited employment history:

He founded the Just 4 Kidz Outreach program in Harrisburg, Pennsylvania, which was community-based, non-profit after school program for children in Harrisburg. He was the director and president of this organization from 2003 until his arrest for the instant offense. He has also worked part time for a cleaning service; at a car wash, a fast food restaurant, and a carpet cleaning business. He has institutional work experience at the Food Service detail. Inmate Soto has no other specialized experience as noted in his PSI and is currently working on obtaining his GED. Throughout his incarceration, inmate Soto has completed several courses which relate to his deficit areas in the Inmate Skills Development System, with an emphasis on ReEntry improvement and preparation, examples include: Spirituality, Restorative Justice, Managing Emotions, Conflict Management, Job Fair, Family Life Relationships, and a Leadership course. He has also completed the Life Connections Program (643 hours). He has completed the 40-hour and Non-Residential Drug Abuse Treatment Program as "strongly" recommended by the Court. He has a lengthy criminal history consisting of: Burglary, Larceny, Resisting Arrest, Obstructing Police, Possession of Narcotic Equipment (2x), Possession of Heroin, Possession of Cocaine, Aggravated Assault (shooting death), Unlawful Delivery of Heroin, Possession with Intent to Distribute Heroin, Loitering to Sell Drugs, Harassment, Disorderly Conduct, Distribution of Heroin, Retail Theft (2x), Criminal Conspiracy (3x), and Theft by Deception. Inmate Soto has a significant history of drug and alcohol abuse, which includes: marijuana, heroin, and daily use of cocaine as an adult. He has maintained contact with his family and they have remained supportive of him. Prior to his incarceration, he lived in Harrisburg, Pennsylvania with his wife since 2002. Upon release from custody, inmateSoto plans to return to Harrisburg to reside with his wife and children (two children are under

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