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Burkey v. Marberry

February 18, 2009

JOHN BURKEY, APPELLANT
v.
HELEN J. MARBERRY, WARDEN FCI MCKEAN



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 06-cv-00122E) District Judge: Honorable Sean J. McLaughlin.

The opinion of the court was delivered by: Rendell, Circuit Judge.

PRECEDENTIAL

Argued on November 20, 2008

Before: SCIRICA, Chief Judge, RENDELL, Circuit Judge, and O'CONNOR,*fn1 Retired U.S. Supreme Court Justice.

OPINION OF THE COURT

The question presented by this appeal is whether appellant John Burkey's release from Bureau of Prisons ("BOP") custody caused his pending habeas corpus petition -- which challenged the BOP's failure to grant him early release -- to be moot because it no longer presented a case or controversy under Article III, § 2, of the Constitution. We agree with the District Court that Burkey's petition is moot because his assertion of "collateral consequences" is insufficient. We will therefore affirm.

BACKGROUND

In 1996, Burkey was serving a sentence for federal controlled substances convictions at the Federal Correctional Institution at McKean in Bradford, Pennsylvania. The BOP determined that he was eligible for early release pursuant to 18 U.S.C. § 3621(e)(2)(B),*fn2 because he had completed a residential drug treatment program. Burkey received his early release credit, and was released to serve his term of supervised release.

While on supervised release, Burkey committed new controlled substances crimes and was rearrested. In July of 2003, he was sentenced in United States District Court for the Northern District of Ohio to a term of imprisonment of 57 months, to be followed by 3 years of supervised release. A few weeks later, the sentencing court imposed a three-month supervised release violator term, to be served concurrent with the 57-month term of imprisonment.

Burkey returned to prison and participated once again in the drug treatment program, expecting to again qualify for early release. However, the BOP, relying on a recently adopted rule, namely, Paragraph 5(c) of Program Statement 5331.01,*fn3 determined that he was ineligible for early release because he had previously received an early release credit under the statute.

Burkey pursued his administrative remedies through the BOP, attempting at first to raise an ex post facto argument. The Warden denied him relief and he lost his appeal at the Regional level. Upon denial of that appeal, he filed a Central Office Administrative Remedy Appeal, arguing for the first time that Paragraph 5(c) of Program Statement 5331.01 was issued in violation of the Administrative Procedures Act and thus was invalid. In March of 2006, Burkey's Central Office Administrative Remedy Appeal was denied on the basis that his ex post facto claim had no merit. The APA claim was not addressed.

In May of 2006, Burkey filed a pro se petition for writ of habeas corpus, 28 U.S.C. § 2241, in United States District Court for the Western District of Pennsylvania, where he was confined. He challenged the BOP's determination that he was not eligible for early release under 18 U.S.C. § 3621(e)(2)(B), urging that Paragraph 5(c) of Program Statement 5331.01 was promulgated in violation of the Administrative Procedures Act, 5 U.S.C. § 553, and was, therefore, invalid. Burkey asked to be released from detention. The Federal Public Defender was appointed to represent him.

In August of 2007, the Magistrate Judge issued a thorough Report and Recommendation, concluding that the BOP had violated the APA. The APA provides that an agency may not adopt a rule without providing prior notice through publication in the Federal Register and comment. 5 U.S.C. § 553(b), (c). The Magistrate Judge reasoned that Paragraph 5(c) of Program Statement 5331.01 was neither an exempt "interpretative rule" nor an exempt general statement of policy. See Dia Navigation Co., Ltd. v. Pomeroy, 34 F.3d 1255, 1264 (3d Cir. 1994). It was instead a legislative rule, see id., subject to the APA, and the BOP could not avoid the APA's requirements by placing a legislative rule in a Program Statement, instead of first publishing it in the Federal Register.

The Magistrate Judge recommended that Burkey's request for habeas corpus relief be granted because he had completed the ...


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