The opinion of the court was delivered by: Judge Muir
Petitioner, Jason Berrios, an inmate currently confined in the Allenwood Low Security Correctional Institution, White Deer, Pennsylvania ("LSC-Allenwood") filed the above-captioned petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his petition Berrios states that he is being "deprived of his liberty of interest due to the fact that he is confined in prison for the duration of his sentence and not a CCC [Community Corrections Center]" in accordance with Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005). (Doc. No. 1, petition at p. 2). For relief, Berrios requests "to be moved to a community correctional center/home confinement placement for the remainder of [his] sentence." (Doc. No. 1 at p. 3).
A response and traverse having been filed, the petition is ripe for disposition. For the reasons that follow, the petition will be denied.
On February 16, 2005, in the United States District Court for the District of New Jersey, Berrios was sentenced to a 34 month term of imprisonment, followed by a four year term of supervision, for conspiracy to kidnap, a violation of 18 U.S.C. § 1201(a)(1). (Doc. No. 8, Ex. 1, Declaration of Case Manager Mara Hause, at ¶ 7 and Attach. D). Berrios is currently scheduled to be released from custody on July 9, 2007, via Good Conduct Time release. Id., Attach. A at 6.
At the time he filed the instant petition, the BOP had determined Berrios eligible for a 112 day placement in a CCC. (Doc. No. 8, Ex. 1, ¶ 5).
Berrios argues that he is eligible for immediate transfer to a CCC and that by his calculation, he should have been transferred to a CCC for 180 days, beginning on January 7, 2007. (Doc. No. 9, traverse at p. ¶ 5). Berrios' claim rests upon the assertion that under the applicable statutory provision he has a right to CCC placement when he has only six months remaining on his prison term.
The controlling statute for placement of an inmate in pre-release custody near the end of sentence is 18 U.S.C. § 3624(c), which in pertinent part provides:
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 in this subsection may be used to place a prisoner in home confinement.
The customary practice of the BOP was to consider prisoners for placement in a CCC for as much as the last six months of their sentences, even if this occurred before the prisoner had served 10% of his sentence ("Six Month Rule"). However, on December 20, 2002, the BOP replaced the Six-Month Rule with a rule which provided that, under §3624(c), CCC residence must be limited to the lesser of ten percent of a prisoner's sentence or six months ("10% Rule"). The 10% Rule was implemented by the BOP following a December 13, 2002 Memorandum Opinion issued by the Office of Legal Counsel of the United States Department of Justice ("OLC Memorandum"), which concluded that the Six-Month Rule was improper under the plain language of § 3624(c). (Doc. No. 12, Ex. B). The OLC Memorandum stated that "[t]he authority conferred under Section 3624(c) to transfer a prisoner to a non-prison site is clearly limited to a period 'not to exceed six months, of the last 10 per centum of the time to be served,'18 U.S.C. § 1324, and we see no basis for disregarding this time limitation." Id.
In Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir.2005), the Third Circuit Court of Appeals found that the BOP's regulations regarding placement in a halfway house or CCC, specifically, 28 C.F.R. §§ 570.20 and 570.21 were invalid because they did not take into account all of the necessary factors set forth in 18 U.S.C. § 3621 which Congress required the BOP to consider in promulgating those regulations. As a result, BOP staff are now required to fully consider the following factors set forth in 18 U.S.C. § 3621(b)*fn1 : (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 § 994(a)(2) of Title 28. Id. at ¶ 13; 18 U.S.C. § 3621(b). In addition, the BOP is to consider other appropriate factors routinely used in these decisions, such as correctional and population management interests (length of sentence, seriousness of current offense, criminal history, institution conduct, programming needs of the inmate, availability of facilities, public safety, threat to the community, community ties, release residence, employment and education history, and economic resources). Id. at ¶ 14.
Despite the 2002 change in the interpretation of 18 U.S.C. § 3624(c) rendered by the Office of Legal Counsel, and the BOP's now invalidated regulation concerning CCC placement, 28 C.F.R. § 570.21, the criteria for placement in a CCC, as listed in Program Statement 7310.04, Community ...