United States District Court, Middle District of Pennsylvania
April 6, 2000
THOMAS GAMBINO, PETITIONER,
SUSAN GERLINSKI, WARDEN, LOW SECURITY CORRECTIONAL INSTITUTION &MDASH; ALLENWOOD, RESPONDENT.
The opinion of the court was delivered by: Muir, District Judge.
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS;
On May 11, 1993, Thomas Gambino was found guilty of a
substantive violation of the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1962(c), and conspiracy in
violation of the Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. § 1962(d). On October 29, 1993, Gambino was
sentenced to pay a $100,000 fine and serve 60 months in the
custody of the Bureau of Prisons. Gambino was released on bail
pending the appeal of his conviction. Gambino's appeal was not
successful and on January 3, 1996, he reported to the Low
Security Correctional Institution at Allenwood in White Deer,
Pennsylvania. By that date Gambino had paid his fine in full.
His sentence is due to expire on May 10, 2000.
On December 29, 1999, Gambino initiated this action by filing
a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241. His petition is based on the claim that
18 U.S.C. § 3624(c) provides him with "a right to some `reasonable' period
of halfway house or home confinement before his sentence
expires, `if practicable.'"*fn1 (Petitioner's Reply to
Respondent's Brief in Opposition to Objections to Magistrate
Judge's Report and Recommendation,
page 3) Gambino specifically contends that the Respondents'
refusal to transfer him to a halfway house or to home
confinement for some period within the last 10% of his sentence
violates both 18 U.S.C. § 3624(c) and his Fifth Amendment due
The Clerk of Court assigned this case to us on December 30,
1999, but referred it to Magistrate Judge Blewitt for
preliminary consideration. On March 8, 2000, the Magistrate
Judge issued a report recommending, inter alia, "that the
portion of Gambino's petition relating to pre-release custody be
remanded to the Bureau of Prisons for proper consideration of
Petitioner's eligibility for home confinement." (Report and
Recommendation, pg. 7)
On March 23, 2000, Gambino filed an objection to that report
and recommendation. After granting Gambino's motion for
expedited briefing of his objection, the matter became ripe for
disposition upon the filing of Gambino's reply brief on April 4,
When objections are filed to a report of a magistrate judge,
we make a de novo determination of those portions of the
report or specified proposed findings or recommendations made by
the magistrate judge to which there are objections. United
States vs. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d
424 (1980); 28 U.S.C. § 636(b)(1); M.D.Pa. Local Rule 72.3.
It is well-settled that "[a] necessary predicate for the
granting of federal habeas relief [to a petitioner] is a
determination by the federal court that [his or her] custody
violates the Constitution, laws, or treaties of the United
States." Rose vs. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177,
46 L.Ed.2d 162 (1975) (citing 28 U.S.C. § 2241). We first
consider whether Gambino has established that predicate via a
The United States Supreme Court has repeatedly said
both that prison officials have broad administrative
and discretionary authority over the institutions
they manage and that lawfully incarcerated persons
retain only a narrow range of protected liberty
interests. . . . "Lawful incarceration brings about
the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the
considerations underlying our penal system." . . .
Thus, there is no "constitutional or inherent" right
to parole, . . ., and "the Constitution itself does
not guarantee good-time credit for satisfactory
behavior while in prison," . . . despite the
undoubted impact of such credits on the freedom of
inmates. Finally, in Meachum v. Fano, supra., 427
U.S. [215,] 223, 96 S.Ct. [2532,] 2538, [49 L.Ed.2d
451], the transfer of a prisoner from one institution
to another was found unprotected by "the Due Process
Clause in and of itself," even though the change in
facilities involved a significant modification in
conditions of confinement, later characterized by the
Court as a "grievous loss."
Hewitt vs. Helms, 459 U.S. 460, 467-68, 103 S.Ct. 864, 869, 74
L.Ed.2d 675 (1983) (citing Moody v. Daggett, 429 U.S. 78, 88,
n. 9, 97 S.Ct. 274, 279, n. 9, 50 L.Ed.2d 236 (1976)). The Court
in Hewitt summarized those decisions as holding that
[a]s long as the conditions or degree of confinement
to which the prisoner is subjected is within the
sentence imposed upon him and is not otherwise
violative of the Constitution, the Due Process Clause
does not in itself subject an inmate's treatment by
prison authorities to judicial oversight.
Id. at 468, 103 S.Ct. 864.
Title 18 U.S.C. § 3624 is entitled "Release of prisoner."
Subsection (c) of that section, entitled "Pre-release custody,"
provides in relevant part that
[t]he 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 Respondents' refusal to bestow upon Gambino any benefit
described in § 3624(c) falls within the scope of the Supreme
Court precedent cited above. That refusal does not amount to a
violation of Gambino's due process rights. See Lyle vs.
Sivley, 805 F. Supp. 755, 760 (Ariz. 1992).
The only other potential predicate for awarding Gambino any
habeas relief is a showing that his current custody violates the
above statute. See Rose v. Hodges, infra. In order for a
statute to confer a liberty interest it must be "explicitly
mandatory" and provide for "specified substantive predicates"
which dictate a substantive result. Hewitt, 459 U.S. at
471-472, 103 S.Ct. 864; Tony L. v. Childers, 71 F.3d 1182 (6th
Cir. 1995), cert. denied, 517 U.S. 1212, 116 S.Ct. 1834, 134
L.Ed.2d 938 (1996). A statute which expresses non-binding
procedural guidelines alone does not create a protectable
interest. Culbert v. Young, 834 F.2d 624, 628 (7th Cir. 1987),
cert. denied, 485 U.S. 990, 108 S.Ct. 1296, 99 L.Ed.2d 506
(1988); E.B. v. Verniero, et al., 119 F.3d 1077, 1105 n. 26
(3d Cir. 1997). The sole issue is whether 18 U.S.C. § 3624(c)
dictates a substantive result or merely expresses non-binding
Gambino asserts that 18 U.S.C. § 3624(c) requires the Bureau
of Prisons to provide him with some amount of time, during the
last ten percent of his sentence, in pre-release confinement
(e.g., a halfway house or home confinement).
Our research indicates that neither the United States Supreme
Court nor the Court of Appeals for the Third Circuit has
addressed the issue currently before us. However, one other
Court of Appeals and five District Courts have considered it.
In Prows v. Federal Bureau of Prisons, 981 F.2d 466 (10th
Cir. 1992), cert. denied, 510 U.S. 830, 114 S.Ct. 98, 126
L.Ed.2d 65 (1993), the Court of Appeals for the Tenth Circuit
reasoned and concluded that
[w]hile there is mandatory (albeit qualified)
language employed in the statute, it relates only to
the general direction to facilitate the prisoner's
post-release adjustment through establishment of some
unspecified pre-release conditions. Nothing in §
3624(c) indicates any intention to encroach upon the
Bureau's authority to decide where the prisoner may
be confined during the pre-release period.
Id. at 469 (citing United States v. Laughlin, 933 F.2d 786
789 (9th Cir. 1991)). Each district court which has addressed
the issue has reached the same conclusion. Lizarraga-Lopez v.
U.S., 89 F. Supp.2d 1166 (S.D.Cal. 2000) (holding that no relief
is available pursuant to § 2255 based on alleged violation of §
3624(c) because it does not guarantee placement into community
confinement for any federal prisoner and noting that Bureau of
Prisons has been granted vast discretion to determine
appropriate conditions under which prisoner shall serve his or
her sentence); U.S. v. Morales-Morales, 985 F. Supp. 229, 231
(P.R. 1997) (§ 3624(c) does not confer upon prisoners the right
to seek a particular form or place of pre-release custody);
U.S. v. Mizerka, 1992 WL 176162 (Or. July 16, 1992) (no habeas
corpus relief based on an alleged violation of § 3624(c) because
that section does not require the Bureau of Prisons to provide
for confinement in a community corrections center prior to the
end of the term of imprisonment); Flisk v. U.S. Bureau of
Prisons, et al., 1992 WL 80523 (N.D.Ill. April 10, 1992) (no
relief available pursuant to § 2255 based on alleged violation
of § 3624(c) because that section is not mandatory); Lyle vs.
Sivley, 805 F. Supp. 755 (Ariz. 1992) (habeas corpus relief
denied because, inter alia, § 3624(c) does not create a
protected liberty interest).
Each of those courts has decided that § 3624(c) does not
create a liberty interest because it "refers to no [mandatory]
procedures. It is instead a broadly worded statute setting forth
a general policy to
guide the prison system." Badea v. Cox, 931 F.2d 573, 576 (9th
Cir. 1991). We agree with the conclusion unanimously reached by
those courts and have found no case in which a court has reached
a result inconsistent with those cited.
Gambino has failed to state a claim for relief because he has
not shown that his confinement is in violation of the
constitution or any federal law.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Gambino's petition for writ of habeas corpus
(Document 1) is denied.
2. The telephonic status conference to be held on
Friday, April 7, 2000, at 4:00 p.m., is now moot
and is cancelled.
3. The Clerk of Court shall forthwith transmit a
copy of this order by FAX to the offices of those
counsel who may be so reached, shall read the
dispositive provisions to other counsel over the
telephone, and shall mail a copy to each counsel.