The opinion of the court was delivered by: J. Rambo
Petitioner Jason S. Erickson ("Erickson"), an inmate currently incarcerated at the United State Penitentiary in Allenwood, Pennsylvania ("USPAllenwood), filed the instant petition for writ of habeas corpus pursuant to 29 U.S.C. § 2241 on July 16, 2010, seeking an order compelling Respondent to reconsider the decision denying him placement in a residential re-entry center ("RRC"). (Doc. 1.) For the reasons that follow, the petition will be denied.
Petitioner was sentenced on January 8, 2003, in the United States District Court for the Eastern District of Virginia for knowingly and intentionally conveying a threat to damage, destroy and disable an aircraft used in interstate and foreign air commerce by means of a destructive device in violation of 18 U.S.C. § 32. Petitioner was sentenced to thirty-six months on this offense. Since January 20, 2009, Petitioner has been housed at USP- Allenwood. Assuming he earns all of the good time credit that is available, his projected release date is May 10, 2011.
On April 9, 2008, the Second Chance Act of 2007, Pub. L. No. 110-199, Title II, § 251, 122 Stat. 657, 692 ("Second Chance Act"), was signed into law. 18 U.S.C. §§ 3621, 3624. The Second Chance Act increases the duration of pre-release placement in an RRC from six to twelve months and requires the Bureau of Prisons ("BOP") to make an individualized determination of each prisoner before release that ensures the placement is "of sufficient duration to provide the greatest likelihood of successful reintegration into the community." 18 U.S.C. § 3624(c)(6)(C). The BOP has since issued two guidance memoranda, indicating approval is required from the Regional Director for RRC placements longer than six months. In the meantime, regulations were passed which stated, "[i]nmates may be designated to community confinement as a condition of pre-release custody and programming during the final months of the inmate's term of imprisonment, not to exceed twelve months." 28 C.F.R. § 570.21(a). In addition, "[i]nmates will be considered for pre-release community confinement in a manner consistent with 18 U.S.C. § 3621(b), determined on an individual basis, and of sufficient duration to provide the greatest likelihood of successful reintegration into the community, within the time-frames set forth in this part." 28 C.F.R. § 570.22.
Recommendations for RRC placement are ordinarily reviewed with the inmate and Unit Team seventeen to nineteen months prior to the inmate's probable release date. (Memo. for Chief Exec. Officers, Doc. 13-4, at 9 of 30.) After approval from the Warden, referrals are then forwarded to the Community Corrections Manager at least sixty days prior to the maximum recommended date. (Id. at 10 of 30, citing BOP Program Statement 7310.04 Community Corrections Center Utilization and Transfer Procedures.) These recommendations and referrals weigh the needs of the inmate, the public safety, and the necessity of the BOP to manage its inmate population. (Id.)
BOP Program Statement 7310.04 states that inmates with "unresolved pending charges, or detainers, which will likely lead to arrest, conviction, or confinement" are not normally eligible for RRC placement. (BOP Program Statement 7310.04, Doc. 13-4, at 27 of 30.) Furthermore, the Statement requires that "[w]hen an inmate is excluded under this subsection, a memorandum, signed by the Warden, shall be prepared and placed in the Inmate Central File to explain the rationale for exclusion from [RRC] Programs." (Id.)
On January 17, 2010, Petitioner's Unit Team conducted a program review to discuss his potential to be placed in an RRC. (Residential Re-Entry Center Consideration, Doc. 13-5, at 16 of 30.) A review of Petitioner's file was conducted, and it was determined he was not available for RRC placement because he had an outstanding charge in Florida for violation of the Anti Tamper Act. (Id.) In addition, information was received that Petitioner had an outstanding warrant in Colorado for Vehicle Theft. (Detainer Action Letter, U.S. Dept. of Justice, Doc. 13-5, at 17 of 30.)
On February 16, 2010, Petitioner's Unit Team conducted a Program Review of his institutional placement and determined that because of his pending charges it was not recommended he be placed in an RRC. (RRC Denial, Doc. 13-5, at 18 of 20.) Pursuant to Program Statement 7310.04, a memorandum was prepared that was signed by the Warden and placed in Petitioner's inmate file, outlining the rationale for his denial to an RRC. (Id.) The memorandum stated:
According to [Petitioner's] PSI, a probation violation report was filed in Volusia, Florida, and a warrant was issued relative to this initial conviction for Florida Anti Tamper Act. [Petitioner] reportedly failed to submit written reports to his probation officer, changed his residence without notification, absconded from supervision, incurred new arrests, and failed to pay restitution and court costs. According to a document dated July 15, 2009, from the Volusia County Sheriff's Office, their department will not file a detainer and the warrant is not a "nationwide pick up". However, the warrant remains active.
Petitioner relies on 28 U.S.C. § 2241 to challenge the denial of his pre-release placement. Section 2241 "confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence." Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). The Third Circuit has concluded that Section 2241 is the appropriate avenue for challenging a decision to exclude ...