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Bisulca v. Schism

July 27, 2010

ROBERT BISULCA, PETITIONER
v.
WILLIAM SCHISM, RESPONDENT



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

Petitioner Robert Bisulca ("Bisulca"), a federal inmate confined at the Low Security Correctional Institution at Allenwood ("LSCI-Allenwood"), filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241on December 29, 2009 (Doc. 1), seeking an order compelling respondent to reconsider its decision concerning his pre-release custody placement in a residential re-entry center ("RRC") for the last twelve months of his sentence in accordance with the Second Chance Act of 2007, and grant him "one year of R.R.C. placement." (Doc. 2, at 2.) On May 5, 2010, the petition was dismissed for failure to exhaust the administrative review process prior to petitioning for relief in federal court. (Doc. 11.) Bisulca now seeks reconsideration of the order of dismissal. (Doc. 14.) For the reasons set forth below, the motion for reconsideration will be granted, the memorandum and order of May 5, 2010, will be vacated and the petition will be considered on the merits.

I. Motion for Reconsideration

A. Standard of Review

A motion for reconsideration is a device of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court's altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court entered judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Such a motion is appropriate in instances where the court has "patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Rohrbach v. AT & T Nassau Metals Corp., 902 F.Supp. 523, 527 (M.D.Pa. 1995), vacated in part on other grounds on reconsideration , 915 F. Supp. 712 (M.D.Pa. 1996) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983)). It may not be used as a means to reargue unsuccessful theories or argue new facts or issues that were not presented to the court in the context of the matter previously decided. Drysdale v. Woerth, 153 F. Supp.2d 678, 682 (E.D.Pa. 2001). "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Continental Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D.Pa. 1995).

B. Discussion

Bisulca argues that because he did, in fact, exhaust his request for administrative relief prior to the court's adjudication of this matter, the petition should be considered on the merits. (Doc. 14.) Specifically, he states that the BOP's final response, which was dated April 9, 2010, and received by him on April 15, 2010, was filed with the court on or about April 19, 2010, and that the court failed to take this into consideration in finding that he failed to exhaust. (Id. at 1.)

On August 10, 2009, Bisulca filed an administrative claim seeking twelve months of RRC placement in accordance with the Second Chance Act. (Doc. 7-2, Declaration of Susan Albert ("Albert Decl."), BOP Paralegal Specialist, at 88, ¶ 7.) He filed an appeal on September 3, 2009, which was denied on October 2, 2009. (Id. at 88-89, ¶ 8.) He moved through the Regional Level and, on December 28, 2009, he filed an appeal to the Central Office. (Id. at 89, ¶ 10.) He filed the present petition on December 29, 2009. (Doc. 1.) He stated in his traverse, which he forwarded to the court on February 4, 2010, that he was "still waiting for an answer from the B.O.P." (Doc. 8, at 5.) On May 5, 2010, the date on which the petition was dismissed for failure to exhaust the administrative review process, the April 15, 2010 final administrative response was not a part of the record.*fn1 In fact, it was not made a part of the record until it was submitted as an exhibit to Bisulca's May 17, 2010 motion for reconsideration. (Doc. 14, at 5.)

The court notes that, while he may have finally exhausted the administrative review process as of April 9, 2010, he failed to exhaust his administrative claim prior to instituting the present habeas action. See Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996) (concluding that "[f]ederal prisoners are ordinarily required to exhaust their administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241"). Notwithstanding this failure, because he has now exhausted the process available to him, it would not further the goals supporting the exhaustion requirement to refuse to address his claim on the merits. See Moscato, 98 F.3d at 762. (listing the following goals: "(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy"). Consequently, the motion for reconsideration will be granted, the memorandum and order of May 5, 2010, will be vacated, and in the merits of Bisulca's petition will be considered.

II. Merits of Habeas Petition

A. Background

Bisulca was sentenced on July 13, 1994, in the United States District Court for the Southern District of New York to a 240-month term of imprisonment for murder in aid of a continuing criminal enterprise in violation of 21 U.S.C. § 848(E)(1)(A) & 18 U.S.C. § 2. (Doc. 7-2, Declaration of Kendahl Gainer ("Gainer Decl."), Federal Bureau of Prisons ("BOP") Case Manager, at 4, ¶ 2.) His projected release date is May 28, 2011, via good conduct time release. (Id. at 4-5, ¶ 3.)

On April 9, 2008, the Second Chance Act of 2007, Pub. L. No. 110-199, Title II, § 251, 122 Stat. 657, 692 (the "Second Chance Act"), codified at 18 U.S.C. §§ 3621, 3624 was signed into law. The Act increases the duration of pre-release placement in an RRC from six to twelve months and requires the BOP to make an individual determination that ensures that the placement be "of sufficient duration to provide the ...


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