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Paul F. Polishan v. H.L. Hubbard

January 6, 2011

PAUL F. POLISHAN,
PETITIONER :
v.
H.L. HUBBARD, WARDEN,FCI SCHUYLKILL, RESPONDENT



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

On September 9, 2010, Paul F. Polishan ("Polishan") filed this petition for writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2241, seeking "additional months of residential reeentry center ("RRC") placement as an incentive for his extensive participation in the BOP skills development program. . . ." in accordance with 42 U.S.C. § 17541, a provision in the Second Chance Act of 2007. (Doc. 1, at 1.) For the reasons set forth below, the petition will be denied.

I. Background

Polishan, a federal inmate incarcerated at the Federal Correctional Institution at Schuylkill, Minersville, Pennsylvania, "was sentenced on January 18, 2002, in the United States District Court for the Middle District of Pennsylvania, to a 108-month term of imprisonment for conspiracy to defraud the United States, making false statements in connection with security filings, use of deceptive devices in connection with purchase and sale of security by I/S commerce and mails, bank fraud, and wire fraud." (Doc. 5-2, Declaration of Rick Painter ("Painter Decl."), at ¶ 3.) His projected release date is July 11, 2011. (Id. at ¶ 4).

On April 9, 2008, subsequent to Polishan's sentencing, 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 possible length of pre-release placement in an RRC from six to twelve months and requires the Bureau of Prisons ("BOP") to make an individual determination that ensures that the placement be "of sufficient duration to provide the greatest likelihood of successful reintegration into the community." 18 U.S.C. § 3624(c)(6)(C) (Apr. 9, 2008). In accordance with the statute, regulations were issued within ninety days of the date of the enactment of the Second Chance Act, to ensure that placement in a community correctional facility by the Bureau of Prisons is conducted in a manner consistent with section 3621(b), determined on an individual basis, and of sufficient duration to provide the greatest likelihood of successful reintegration into the community. 18 U.S.C. § 3624(c). Section 3621(b) states as follows:

(b) Place of imprisonment. The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering-

(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 Section 994(a)(2) title 28 . . . . . . Any order, recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have no binding effect on the authority of the Bureau under this section to determine or change the place of imprisonment.

Following the passage of the Second Chance Act, the BOP issued two guidance memoranda dated April 14, 2008 (Doc. 5-2 at 6-) and November 14, 2008, both of which required approval from the Regional Director for RRC placements of longer than six (6) months. Interim regulations passed on October 21, 2008, state that "[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) (see Doc. 5-4 at 16-19, Copy of 10/21/08 Interim Regs.). Moreover "[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. The regulations do not include a requirement that the Regional Director approve pre-release RRC placement beyond six-months.

Recommendations for RRC placements ordinarily are reviewed with the inmate and the Unit Team seventeen (17) to nineteen (19) months before the inmate's probable release date. (Doc. 5-2, Painter Decl., at ¶ 5.) Referrals are then forwarded to the Community Corrections Manager ("CCM") at least sixty (60) days prior to the maximum recommended range or date. (Id. at ¶ 6 (citing BOP Program Statement ("P.S.") 7310.04, Community Corrections Center Utilization and Transfer Procedures ).

On September 28, 2009, Polishan's Unit Team reviewed his file for RRC placement, and considered the five criteria set forth in Section 3621(b), as well as his need for services, public safety, and the necessity of the Bureau to manage its inmate population. Based upon this review, the Unit Team recommended RRC placement of 180 days. (Doc. 5-4 at 1-2.) The Warden approved this recommendation. (Id.) "This recommendation was based on the facts that Polishan has secured residency with his wife, is not indigent, has maintained a clear disciplinary record while incarcerated, has employable skills and has a strong support system at home. ...


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