United States District Court, E.D. Pennsylvania
February 10, 2004.
UNITED STATES OF AMERICA
The opinion of the court was delivered by: CYNTHIA RUFE, District Judge
MEMORANDUM OPINION AND ORDER
Presently before the Court is Defendant James Zgleszewski's Motion for
Half-Way House and Home Confinement Pursuant to 18 U.S.C. § 3624(c) and
BOP Program Statement 7310.04. Defendant pleaded guilty to five counts of
mail fraud in violation of 18 U.S.C. § 1341. On March 14, 2003, Defendant
was sentenced to forty-two (42) months imprisonment and three years
supervised release, and ordered to pay $2,355,752 in restitution. See
Doc. # 8 (Judgment). Defendant was ordered to surrender himself on March
28, 2003, see id., and is presently serving his term of imprisonment at
Lewisburg Federal Penitentiary in Union County, Pennsylvania.
On January 7, 2004, Defendant filed the instant motion pro se, He seeks
an Order directing the Bureau of Prisons ("BOP") to place him in a
Community Corrections Center ("CCC" or "half-way house") for at least six
months of his term of imprisonment. The title of Defendant's motion
suggests that Defendant also wishes to be placed in home confinement. In
support the motion Defendant cites 18 U.S.C. § 3624(c), which provides
that the BOP "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." He also cites BOP Program
Statement 7310.04, which states that the BOP "is not restricted by §
3624(c) in designating a CCC for an inmate and may place an inmate in a
CCC for more than the `last ten percentum of the term,' or more than six
months, if appropriate." BOP Program Statement 7310.04 at 4 (issued
12/16/98) (available at www.bop.gov).
In addition, Defendant cites Cioffoletti v. Federal Bureau of Prisons,
No. 03 CV 3220(ILG), 2003 WL 23208216 (E.D.N.Y. Nov. 6, 2003), one of a
slew of cases addressing the validity of a December 13, 2002 Memorandum
Opinion of the Deputy Attorney General, written by the Office of Legal
Counsel (the "OLC Memo"). The OLC Memo reversed approximately fifteen
years of established practice whereby the BOP routinely honored judicial
recommendations to place certain offenders in CCC's for the imprisonment
portion of their sentences, concluding such practice was unlawful under
18 U.S.C. § 3621-22.*fn1 See generally Colton v. Ashcroft, ___ F.
Supp.2d ___, Civ. A. No. 03-554-JBC, 2004 U.S. Dist. LEXIS 574, at *2-4
(E.D. Ky. Jan. 15, 2004) (explaining reversal of BOP policy). Numerous
federal district courts have invalidated the new policy as procedurally
defective under the Administrative Procedures Act, 5 U.S.C. § 551 et
seq., and substantively invalid because it is an unreasonable agency
interpretation. See Dismas Charities. Inc. v. United States Department of
Justice. Federal Bureau of Prisons, 287 F. Supp.2d 741, 743 n.3 (W.D.
Ky. 2003) (collecting cases). The Court is well aware of these (and
other) BOP policies and judicial developments, but concludes they have no
application to the case at bar.
Having been imprisoned since March 28, 2003, Defendant has completed
approximately ten months of a forty-two month term of imprisonment,
leaving approximately thirty-two months imprisonment remaining in his
sentence. Insofar as his motion invokes the "10% rule" of § 3624(c), it
is premature. Additionally, Defendant's motion provides no information
regarding his efforts to secure a transfer to a CCC. Nor does Defendant
assert that the BOP has refused or stated that it would refuse to
transfer him to a CCC. See 18 U.S.C. § 3621 (b) (granting authority to
BOP to "designate the place of the prisoner's imprisonment"). Defendant
certainly has no right to placement in a CCC, nor did the Court recommend
that BOP place Defendant in a CCC. See Doc. # 8 (Judgment). Even the
Government concedes that "[a]t the appropriate time and pursuant to BOP
regulations, the defendant may qualify for a community corrections center
after he has served the majority of his sentence." Government's Response
at 2. Accordingly, there being no imminent, cognizable injury to
Defendant, he lacks standing to pursue any relief in this case. See,
e.g., Friends of the Earth. Inc. v. Laidlaw Envtl. Servs. (TOO. Inc.,
528 U.S. 167, 180-81 (2000) (injury must be "concrete and particularized
and . . . actual or imminent, not conjectural or hypothetical"). The
motion is denied.
The appropriate vehicle for Defendant to obtain the relief sought is a
petition for writ of habeas corpus. See, e.g., Colton, 2004 U.S. Dist.
LEXIS 574, at * 11-12. Courts have examined similar cases under both
28 U.S.C. § 2241 and 28 U.S.C. § 2255. See Dismas Charities, 287 F.
Supp.2d at 743 n.3 and cases cited therein. Nonetheless, because
Defendant is challenging the manner in which his sentence is being
executed and not seeking to vacate his sentence as illegally
imposed,*fn2 Defendant should seek the writ under 28 U.S.C. § 2241 and
comply strictly with its procedural and substantive requirements. See,
e.g., Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000)
("Generally, motions to contest the legality of a sentence must be filed
under [28 U.S.C.] § 2255 in the sentencing court, while petitions that
challenge the manner, location, or conditions of a sentence's execution
must be brought pursuant to [28 U.S.C.] § 2241 in the custodial
An appropriate Order follows.
AND NOW, this 10th day of February, 2004, upon consideration of the
Motion for Half-Way House and Home Confinement Pursuant to
18 U.S.C. § 3624(c) and BOP Program Statement 7310.04 [Doc. # 13], the
Government's Response thereto [Doc. # 15], and for the reasons set forth
in the attached Memorandum Opinion, it is hereby ORDERED that the Motion
The Clerk of Court is hereby directed to file on the case docket the
attached Letter of 2/4/04 from J. Zgleszweski to Hon. C.M. Rufe.
It is so ORDERED.