CHARLES FOX, Petitioner, v. HARLEY LAPPIN, Director of the Federal Bureau of Prisons, and DAVID L. WINN, Warden, Respondents.

CIVIL ACTION NO. 05-40106-WGY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

409 F. Supp. 2d 79

January 17, 2006, Decided

PRIOR HISTORY: Fox v. Lappin, 2005 U.S. Dist. LEXIS 43072 (D. Mass., Nov. 18, 2005)

COUNSEL: [**1] For Charles Fox, Petitioner: Pro se, Ayer, MA.

For Harley Lappin, Warden David L. Winn, Respondents: Gregg D. Shapiro, Office of the United States Attorney, Boston, MA.

For Federal Defender Office, Amicus: Judith H. Mizner, Federal Defender's Office, District of Massachusetts, Boston, MA.

JUDGES: WILLIAM G. YOUNG, DISTRICT JUDGE.

OPINION BY: WILLIAM G. YOUNG

OPINION


[*81] MEMORANDUM AND ORDER

YOUNG, D.J.

January 17, 2006

I. INTRODUCTION

Petitioner Charles Fox ("Fox"), is challenging the Bureau of Prisons' ("Bureau") classification of him as a sex offender based on an over-24-year-old state conviction. See Pet. for a Declaratory J. under 28 U.S.C. §§ 1331 and 2201 and for a Writ of Mandamus and Prelim. Inj. ("Fox Pet.") [Doc. No. 1]. Fox argues that, because of this improper classification, he was denied transfer to a halfway house and, upon his release, will be subject to notification and registration requirements pursuant to Title 18, Section 4042(c) of the U.S. Code ("Section 4042(c)"). 1 Id. at 3, 4.

FOOTNOTES

1 Because this is one of a number of cases in this Court raising similiar claims, see Cooper v. Winn, No. 05-40164 (D. Mass. filed Sept. 16, 2000) (Lindsay, J.); Barrera v. Winn, No. 5-40107 (D. Mass. filed June 23, 2005) (Zobel, J.); Johnson v. Winn, No. CA 05-40197 (D. Mass. filed Oct. 28, 2005) (Gorton, J.), the Court sought and received a brief amicus curiae from the Federal Defenders Office and expresses its appreciation for that submission.


[**2] Fox initially sought a declaratory judgement, preliminary injunction, and writ of mandamus for his claims. In a recent opinion, this Court denied respondents' motion to dismiss, ruling that the notification claim was properly before the Court and construing the denial of transfer claim as a petition for habeas relief. Mem. and Order of Nov. 18, 2005 [Doc. No. 19] at 11. The Court also denied the request for a writ of mandamus and reserved its judgement as to the issuance of a preliminary injunction. Id. Fox has exhausted all of his administrative remedies. Resp'ts' Status Report [Doc. No. 17] at 1.

A. Factual Background

Fox is currently a prisoner at the Federal Medical Center in Devens, Massachusetts ("FMC Devens") serving a 37-month prison term for being a felon in possession of a firearm in violation of Title 18, Section 922(g)(1) of the U.S. Code. See Decl. of Diana Jacobs Lee, Assistant Regional Counsel, Northeast Regional Office of the Federal Bureau of Prisons ("Lee Decl.") [Doc. No. 7.], Ex. A ("Judgment of April 23, 2003"). His projected release date is February 1, 2006. Lee Decl., Ex. B ("Inmate Data").

At some point prior to or during his term of [**3] confinement, the Bureau applied to Fox a Public Safety Factor ("Safety Factor") of "Sex Offender" based on a 1981 West Virginia conviction for second degree sexual assault. See Resp'ts' Resp. to Pet'r's Pet. for a Declaratory J. and For a Writ of Mandamus and Prelim. Inj. ("Resp'ts' Resp.") [Doc. No. 6] at 3-4; Lee Decl., Ex. D ("Security/Designation Data Form"). According to his Pre-sentence Report, in 1981, Fox was sentenced to a term of 5-10 years in the Greenbrier [*82] County Circuit Court in Lewisburg, West Virginia for sexual assault in the second degree. Lee Decl. P 5. He began serving that sentence on July 25, 1984, and was released from custody on July 25, 1989. Id. The Bureau indicated that it had no information on the prior conviction other than that Fox's original charge was "unlawfully, feloniously, and forcibly engaging in sexual intercourse." Security/Designation Data Form.

1. "Sex Offender" Public Safety Factor

An inmate's placement at a particular prison is determined by assessing the security (minimum, low, medium, high) 2 and program needs (i.e., substance abuse, mental health, vocational/educational training) of that inmate, as well as any other administrative [**4] factors (i.e., overcrowding, judicial recommendations, separation needs). Program Statement 5100.07, ch. 1, at 1. Safety Factors are used by the Bureau to determine an inmate's security designation, which then helps determine his placement at a particular prison. Id. ch. 1, at 2 & ch. 7, at 1.

FOOTNOTES

2 The Bureau's prisons are grouped into security levels -- minimum, low, medium, high, and an administrative category. Federal Bureau of Prisons, Program Statement 5100.07, Security Designation and Custody Classification Manual, ch. 1, at 1 (Sept. 3, 1999)("Program Statement 5100.07").


Two of the six "elements" that require the application of the "Sex Offender" Safety Factor to an inmate are: engaging in sexual contact with another person without permission (forcible rape, sexual assault, or sexual battery); and any offense referenced in the Sex Offender Notification and Registration Program Statement. Id. ch. 7, at 2.

Fox's judgement order in this case, in addition to recommending placement in a substance [**5] abuse treatment, also contained a judicial recommendation that "Defendant be incarcerated as close to his home as possible in a camp-type, minimum security facility if deemed appropriate by the Bureau of Prison." Lee Decl., Ex. A. (J. in United States v. Fox, No. 5:02-00255-01 (Apr. 23, 2003)). The Bureau designated him to a Low Security prison instead -- one can conclude, due to his "Sex Offender" Safety Factor. See Security/Designation Form.

2. Sex Offender Management Program at FMC Devens

FMC Devens assigns all inmates with a Safety Factor of "Sex Offender" and a "low" or "medium" security designation 3 to participate in the Sex Offender Management Program ("Sex Offender Program"). Sex Offender Management Program Inmate Handbook ("Handbook") at 1. This program was established on March 1, 2004 and its primary goal is to "help sexual offenders manage their behavior in order to reduce sexual re-offending." Id.; Decl. of Cheryl Renard -- Coordinator of the Sex Offender Program ("Renard Decl.") [Doc. No. 14], P 2. There are currently 440 inmates enrolled in the program. 4 Renard [*83] Decl. P 2. A psychological evaluation and risk assessment is completed for all [**6] participants. Id.; Handbook at 2. The program staff then use the evaluation results to make management and treatment recommendations for each participant. 5 Renard Decl. P 2. The Program's staff and each participant's Unit Team "collaborate to develop a sound release plan for the program participant that includes appropriate post-release housing, possible placement in Community Corrections Centers (CCC), as well as recommendations for employment, community-based treatment and community supervision." Handbook at 3. Some aspects of the program are voluntary -- psychological testing, psycho-education classes, non-residential therapy. Id. at 4. Active participation, however, is considered by the Unit Team in recommending Community Corrections Center ("Community Center") placement for the inmate; "poor cooperation or failure to participate may curtail [] placement." Id.

FOOTNOTES

3 Fox was given a "low" security designation. See Security/Designation Data Form.

4 Based on Dr. Renard's declaration, the Court rejects Fox's contention that this program is not up and running. See Pl. Reply to and Objections to Resp'ts' Resp. ("Pet. Reply") [Doc. No. 11] at 3-4. Fox's sole basis for this assertion is a letter dated August 18, 2005, from an attorney informing her client in prison that Dr. Renard told that attorney that "the Sex Offender Program at Devens was not up and running." Pet. Reply, Ex. A ("Letter from Kimberly Schechter, Assistant Federal Defender, Western District of New York to Mr. Kenneth J. Happy"). Even if the Court considers this double hearsay evidence, it credits the word of Dr. Renard that the program has been in continuous operation since it began and that, in her conversation with Ms. Schechter, she was referring to intensive sex offender therapy as not being available at FMC Devens. Renard Decl. PP 2-3. [**7]

5 A Correctional Management Plan is completed for each inmate in the program. Handbook at 2. The plan formally informs each participant of the program's components as well as makes treatment and program recommendations. Id. at 2-3. Inmates may be encouraged to participate in the following sex offender psychology programs: The Sex Offender Education Program, Non-residential Sex Offender Treatment, or Psychiatric treatment. Id. at 3.


On May 19, 2005, Fox's Unit Team recommended that he be "denied future consideration for [Community Center] placement" and remain at FMC Devens until his Good Conduct Time Release date of February 1, 2006. Lee Decl., Ex. G. ("Mem. For David L. Winn, Warden") ("Winn Mem."). The memo cited "Poor Institutional Adjustment" as the reason for the recommendation and discussed Fox's failure to participate in the Sex Offender Program, noting that Fox has "displayed poor cooperation by refusing to be interviewed or complete any testing with [program] staff." 6 Id. Shortly after that, Fox filed a request for administrative relief as to this decision. See [**8] Lee Decl., Ex. H. On June 13, 2005, Fox filed a second request for administrative relief asking that his "Sex Offender" classification be changed. See Lee Decl., Ex. K. On June 23, 2005, Fox filed a third request asking that the finding of "Poor Institutional Adjustment" be removed from his record. See Lee Decl., Ex. O. All three requests were denied and subsequently rejected on appeal. See Lee Decl., Ex. I, Ex. L, Ex. N & Ex. P; Resp'ts' Status Report at 1. On June 23, 2005, shortly after Fox began the process of administrative review, Fox filed this petition. See Fox Pet.

FOOTNOTES

6 On July 8, 2004, Fox also refused to sign an acknowledgment that he had reviewed the Handbook and was given an opportunity to ask questions about the program. Handbook at 7 (containing signature of program staff member and the notation "inmate refused to sign -- S.B.").


II. DISCUSSION

A. Notification and Registration Requirement

Section 4042(c) requires notice of an inmate's release to be provided to state [**9] and local authorities where that person was convicted of any of the following offenses: A) kidnapping involving a minor victim, 18 U.S.C. § 1201; B) sexual abuse in a federal prison or special maritime or territorial jurisdiction of the United States, 18 U.S.C. §§ 2241 et seq. C) sexual exploitation and other abuse of minors involving interstate/foreign commerce or transport, 18 U.S.C. §§ 2251 et seq.; D) [*84] transportation of an individual for illegal sexual activity in interstate/foreign commerce or within territories of the United States, 18 U.S.C. §§ 2421 et seq. and E) "any other offense designated by the Attorney General as a sexual offense for purposes of this subsection", 18 U.S.C. § 4042(c) (emphasis added).

The Attorney General delegated that authority to the Director of the Bureau of Prisons. 28 C.F.R. § 571.71. The Director then listed those designated offenses as including "any offense under the law of any jurisdiction that involved: 1) Engaging in sexual contact with another person without obtaining permission to do so (forcible [**10] rape, sexual assault or sexual battery). . . ." 7 28 C.F.R. § 571.72. The Bureau's Program Statement implementing this provision, entitled "Sex Offender Notification and Registration", includes this list. Federal Bureau of Prisons, Program Statement 5141.02, Sex Offender Notification and Registration at 4-6 (Dec. 14, 1998).

FOOTNOTES

7 This provision was enacted pursuant to "notice and comment rulemaking" procedures and, therefore, constitutes a legislative rule. See 63 Fed. Reg. 69386 (Dec. 16, 1998).


In addition to a notification requirement, the statute requires the designated sex offender to register in the state in which he will reside. The statute provides:

Notice provided under paragraph (1) shall include . . . the place where the person will reside, and the information that the person shall be subject to a registration requirement as a sex offender. . . .

The Director of the [Bureau] shall inform a person described in paragraph (4) who is released [**11] from prison that the person shall be subject to a registration requirement as a sex offender in any State in which the person resides, is employed, carries on a vocation, or is a student. . . .

18 U.S.C. 4042(c) (2)-(3) (emphasis added).

1. Standard of Review

It is undisputed that Congress granted the Attorney General the authority to promulgate regulations designating sex offenses for purposes of the federal sex offender statute. See 18 U.S.C. § 4042. "When there is no challenge to whether Congress authorized the Attorney General to issue regulations, we are faced with only two questions." Succar v. Ashcroft, 394 F.3d 8, 22 (1st Cir. 2005).

The Court must first determine whether Congress has spoken to the precise question at issue. Id. "If the language of the statute is plain and admits of no more than one meaning or if the statute's legislative history reveals an unequivocal answer as to the statute's meaning, we do not look to the interpretation that may be given to the statute by the agency charged with its enforcement." Goldings v. Winn, 383 F.3d 17, 21 (1st Cir. 2004) [**12] (internal quotations and citations omitted). If Congress has not spoken as to that issue, the next step is for the Court to determine whether "the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). "Whenever Congress has left a gap for the agency to fill, then we reach the second question, for the agency's regulation is given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute.'" Succar, 394 F.3d at 23 (citing Chevron, 467 U.S. at 843-44)(alteration in original).

[*85] 2. The Attorney General's Authority Under The Statute Is Limited To Designating Federal Offenses as Sex Offenses

Congress's express delegation of authority to the Attorney General was to designate sex offenses for purposes of the statute. The legislative history of the statute reveals that Congress's purpose was to supplement the states' own sex offender registries with persons convicted of federal sex offenses.

What is now Section 4042(c) was originally enacted as part of an extensive piece of legislation seeking [**13] to clarify the standards for state sex offender registration programs. See H.R. Rep. No. 105-256, at 1 (1997). The section containing this language was entitled "Federal Offenders and Military Personnel." 8 H.R. 1683, § 2(h), as found in 143 Cong. Rec. H7626, H7627 (1997); Pub. L. No. 105-119 § 115(a)(8), 111 Stat. 2440 (1997). In discussing the purpose of this legislation, a House Report submitted by the Committee on the Judiciary observes:

FOOTNOTES

8 This bill passed the House on September 23, 1997. See H.R. Rep. 105-845, at 69 (1999). The text of the bill was later incorporated into an appropriations act and passed November 26, 1997. See Pub. L. No. 105-119; H.R. Rep. No. 105-845, at 69-70.


Importantly, H.R. 1683 applies registration requirements to certain offenders who currently are not required to register under the Wetterling Act. The bill requires offenders convicted in federal or military court of certain sex offenses to register in the State in which they reside. In addition, registration [**14] will become a condition of probation or parole for such offenders. The bill is not intended to establish a federal registry system, nor does it require States to enact new laws. It does require offenders convicted in military and federal court to register into already established State programs.

H.R. Rep. No. 105-256, at 7 (emphasis added).

In a section-by-section analysis of the bill, a discussion of this notification provision (section 2(h)) stated that: "Subsection (h) adds a new subsection to 18 U.S.C. 4042 which requires the Bureau of Prisons to give notice to State and local law enforcement and sex offender registration agencies concerning the release to their areas of federal sex offenders." Id. at 19. This section also notes that the "procedures and requirements under the new subsection are largely modeled on existing provisions in 18 U.S.C. 4042(b), which generally require notice to State and local law enforcement concerning the release and subsequent movements of federal offenders and drug offenders." Id. The Congressional Record also reflects this understanding of the bill:

This bill will require [**15] offenders convicted under Federal or military law of certain sex offenses to register in the State in which they reside. . . . [The bill] does require Federal offenders to register under already existing State programs. Convicted sex offenders in the Federal system may be just as dangerous as offenders in all of our States. We must keep track and notify communities of their whereabouts.

143 Cong. Rec. H7628-H7629 (statement of Rep. McCollum).

H.R. 1683 builds on the foundation of the 1994 Jacob Wetterling Act, and applies the Wetterling requirements to offenders convicted under Federal and military law.

Id. at H7631 (statement of Rep. Ramstad).

A subsequent House Report summarizing the various laws enacted by the 105th [*86] Congress confirms that Congress's intent in passing the bill was to "require federal and military offenders to participate in the [state sex offender registry] program." 9 H.R. Rep. No. 105-845, at 69.

FOOTNOTES

9 The report also notes that "while no hearings were held on the bill, formal and informal input was received from the Department of Justice and from several State and local government officials, law enforcement officers and criminal history repository directors." H.R. Rep. 105-845, at 69.


[**16] This provision was intended to supplement the states' registries with information on federal sex offenders. The effect of the Bureau's construction is to supercede the laws and regulations of the states concerning the registration of state sex offenders. See Program Statement 5141.02, Attachment A, pg. 1, Sex Offender Release Notification ("Pursuant to 18 U.S.C. § 4042(c), the [Bureau] is notifying your office of the release of an offender who, based upon available information, was convicted of a sexual offense. This individual is subject to registration as a sex offender under federal law."). This creates the anomalous situation of a federal prisoner with a state sex offense conviction being required to register upon release in a state whose sex offender registration laws would not require registration of that person. For example, if released in Massachusetts, Fox may not be required to register as a sex offender because of Massachusetts' narrow definition of a sex offender. See Mass. Gen. Laws ch. 6, § 178C (defining "sex offender", in part, as "a person who resides, works or attends an institution of higher learning [**17] in the commonwealth and who has been convicted of a sex offense. . . ."). If released in West Virginia, where Fox was convicted, under state law he likewise may not be required to register, given the state's duration requirements. 10 See W. Va. Code § 15-12-2 (defining "sex offender" broadly); W. Va. Code § 15-12-4 (requiring a sex offender to register, except for periods of incarceration, until ten years have elapsed since the person was released from prison or since the person was placed on probation, parole, or supervised release). State laws governing what state sex offenders are required to register and for how long are effectively nullified by the Bureau's interpretation of this provision as they relate to federal prisoners with state convictions.

FOOTNOTES

10 Fox was released from his prison term on the sex offense conviction in 1989. See Lee Decl. P 5.


Given the legislative history, the Bureau has exceeded the scope of the authority delegated by Congress. [**18] 11 A federal prisoner cannot be designated as a sex offender under Section 4042(c) based on a state sex offense. The Bureau argues that this interpretation would render Section 4042(c)(4)(E), allowing the designation of additional offenses, "practically meaningless." Resp'ts' Resp. at 14. This argument is not persuasive since the Bureau did, in fact, designate a number of other non-state crimes as sex offenses in accordance with that provision. See 28 C.F.R. § 571.72 (designating offenses under the Uniform Code of Military Justice and the District of Columbia code as sex offenses for purposes of the statute); Statement 5141.02 at 4-6 (same). As the Amicus suggests, there are also other federal offenses [*87] that could be designated as sex crimes, including federal sex offenses enacted in the future. Mem. of Amicus Curiae Addressing Resp'ts' Substantive Argument ("Amicus Mem.") at 9-10 (suggesting that offenses under Title 21 -- offenses dealing with date rape drugs -- and Title 18 -- offenses ranging from assault to peonage and slavery -- could be designated as sexual offenses by the Bureau).

FOOTNOTES

11 In Simmons v. Nash, the New Jersey District Court also ruled that the Bureau exceeded its authority under Section 4042(c) in designating federal inmates as sex offenders based on prior state convictions. 361 F. Supp. 2d 452, 455 (D.N.J. 2005). The Simmons Court held that, based on the language of the provision and the similarities between Sections 4042(c) and 4042(b), Section 4042(c) "clearly provides that only the current federal offense can act as a trigger for the notification requirement." Id. at 456-57.


[**19] The Bureau argues that, regardless of the Court's decision as to the statutory directive, the Bureau should not be prevented from notifying state and local authorities of Fox's release. Notification of release of a sex offender by the Bureau pursuant to Section 4042(c), however, imposes registration obligations both on the person released and the state notified. The Bureau is certainly free to notify the state as to a released inmate's prior sex offenses. The Bureau, however, can in no way require the inmate to register as a sex offender with that state. Likewise, a basic tenet of our federal system of government is that it is up to a particular state to make determinations such as whether or not a federal inmate ought be registered in its sex offender system.

B. Denial Of Transfer Claim

Fox also challenges the Bureau's refusal to consider him for Community Center placement based on his failure to participate in a mandatory program for inmates with a "Sex Offender" Public Safety Factor. 12 In reviewing this claim, construed as a habeas petition, Fox's entitlement to relief depends on him showing that he is "in custody in violation of the Constitution or laws or treaties [**20] of the United States." 28 U.S.C. § 2241(c)(3). Fox raises a claim under the Due Process Clause by asserting an infringement of a liberty interest. See Pet. Mem. at 7 ("Petitioner contends that a liberty interest exists in this case because had Petitioner been granted a six or five month halfway house, he would be closer to his home and better able to readjust to society."). He also claims statutory violations in his exclusion from Community Center placement which, he argues, is the result of his "Sex Offender" Safety Factor. Pet. Mem. at 3. He is seeking the removal of this Public Safety Factor and reconsideration for Community Center placement. Id.

FOOTNOTES

12 Fox incorrectly relies on Simmons v. Nash, 361 F. Supp. 2d 452 (D.N.J. 2005), for the proposition that the Bureau does not have the authority to apply a "Sex Offender" Safety Factor to him based on a prior state court conviction. See Pet. Mem. at 2-3. The Simmons ruling, as the Bureau correctly points out, only relates to the determination of whether an inmate is a sex offender for purposes of the post-incarceration notification requirement set forth in Section 4042(c) and does not discuss the Bureau's authority to classify inmates using Public Safety Factors. See Simmons, 361 F. Supp. 2d at 453-54; Resp'ts' Resp. at 11 n.2.


[**21] 1. Fox's Due Process Claim Must Be Denied

A protected liberty interest may arise from the Due Process Clause or from a state or federal law. Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998). The Due Process clause does not itself afford Fox a liberty interest in transfer to a less restrictive environment before the expiration of his sentence. Badea v. Cox, No. 93-55475, 1994 U.S. App. LEXIS 14868, at *7 (9th Cir. June 7, 1994); See Prows v. Federal Bureau of Prisons, 981 F.2d 466, 468-9 n.3 (10th Cir. 1992) (observing that "federal prisoners generally enjoy no constitutional right to placement in any particular penal institution"); Lynch v. Hubbard, 47 F. Supp. 2d 125, 127 (D. Mass. 1999) (O'Toole J.) (citing Greenholtz v. Inmates of Nebraska [*88] Penal & Correctional Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979) ("There is no constitutional or inherent right of a convicted person to be released before the expiration of a valid sentence.")).

The statute governing pre-release custody also fails to create a liberty interest in the transfer to a less restrictive environment. The statute [**22] 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 by this subsection may be used to place a prisoner in home confinement.

18 U.S.C. § 3624(c).

This statute imposes a qualified obligation on the Bureau to take steps to facilitate a smooth re-entry for prisoners into the community. Goldings v. Winn, 383 F.3d 17, 23 (1st Cir. 2004). This section does not mandate Community Center placement; however, the Bureau must ensure placement under pre-release conditions except where no such placement is practicable. 13 Id. Because neither Community Center placement nor any placement in a less restrictive environment is mandated, the statute cannot create a liberty interest in the denial of such placement. Gambino v. Gerlinski, 96 F. Supp. 2d 456, 459 (M.D. Pa. 2000), aff'd [**23] , 216 F.3d 1075 (3d Cir. 2000) (unpublished table opinion) (holding that section 3624(c) does not create a liberty interest because it refers to no mandatory procedures and does not provide "'specified substantive predicates' which dictate a substantive result"); Badea, 1994 U.S. App. LEXIS 14868, at *7 (ruling that section 3624(c) created no liberty interest in transfer to a community treatment center because the statute used discretionary terms and did not direct that any action be taken or avoided); see Prows, 981 F.2d at 468 (holding that section 3624(c) does not confer on prisoners an enforceable right to any particular form of pre-release custody); United States v. Laughlin, 933 F.2d 786, 789 (9th Cir. 1991) ("Nothing in the language of section 3624(c) mandates that all prisoners pass through a community treatment center in route to free society.").

FOOTNOTES

13 The First Circuit further noted:

The provision thus reflects Congress's intent to impose upon the agency a duty to prepare prisoners for reentry into the community, without tying the hands of administrators in deciding where prisoners are to be placed. The [Bureau] is not free to disregard this duty. If it did so, judicial relief might be available.

Goldings, 383 F.3d at 23-24 (citation omitted).


[**24] The Amicus argues that "the confluence of the obligations imposed on the [Bureau] through the mandatory nature of 18 U.S.C. § 3624(c) (addressing pre-release custody) and the incorporation of the flawed inclusion of prior state offenses in 18 U.S.C. § 4042(c) in the [Bureau's] sex offender PSF classification scheme, which effectively limits eligibility for halfway house placement, does create a right to consideration of placement in a halfway house under the normal criteria, without consideration of a sex offender PSF." Amicus Mem. at 12. To the extent that the Amicus argues that this creates a liberty interest, this argument must also be rejected. Fox's claim is not that he was denied any pre-release treatment, the qualified obligation imposed on the Bureau by the statute. See Goldings, 383 F.3d at [*89] 23. He contests only his denial of placement in a halfway house -- something that is not mandated by the statute. Even assuming that Fox was improperly classified, without a concrete liberty interest he cannot assert a due process claim. See Green v. Bureau of Prisons, No. 00-819, 2002 U.S. Dist. LEXIS 24917, [**25] at *7-10 (D. Minn. Jan. 29, 2002) (ruling that no liberty interest is implicated where a statute -- Title 18, Section 3621(e) of the U.S. Code -- makes an inmate who completes a substance abuse program eligible for early release and petitioner cannot be considered for the program because he has a "Sex Offender" Safety Factor). 14

FOOTNOTES

14 Classification as a sex offender and the resultant stigma, without more, does not implicate a protected liberty interest upon which a due process claim could be based. Wilks v. Mundt, 25 Fed. Appx. 492, 2002 U.S. App. LEXIS 1309, at *2 (8th Cir. 2002); Day v. Nash, No. 05-797, 2005 U.S. Dist. LEXIS 24539, at *4-6 (D.N.J. Oct. 12, 2005) (holding that allegation of improper assignment of "Sex Offender" Safety Factor did not implicate a liberty interest).


C. Fox's Claims of Statutory Violations

The Court must here determine whether the Bureau exceeded its authority in construing and effectuating the relevant statutes. The Court can [**26] also hold unlawful any action by an agency it finds to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706(2) (A). Judicial review of individual determinations under those statutes governing inmate placement, transfer, release and early release -- Title 18, Sections 3621-3624 of the U.S. Code -- however, is precluded under section 706 of the APA. 18 U.S.C. § 3625 (stating that sections 554-55 and 701-706 of the Administrative Procedure Act do not apply to the making of any determination, decision, or order under sections 3621-3624); Iacaboni v. United States, 251 F. Supp. 2d 1015, 1036 (D. Mass. 2003) (Ponsor, J.). The Bureau's decision not to recommend Fox's transfer to a Community Center falls under sections 3621 and 3624. The Court, therefore, can only review the Bureau's policies regarding the placement of inmates with "Sex Offender" Safety Factors to determine if they are contrary to the Bureau's statutory authority under sections 3621 and 3624, not the decision itself. Iacaboni, 251 F. Supp. 2d at 1036 (ruling that Bureau rulemaking activities [**27] and erroneous interpretations of statutory authority in the form of formal regulations and informal program statements are reviewable). In addition, the Court will also consider whether the Bureau adhered to the procedural prerequisites -- "notice and comment" rulemaking requirements -- in adopting any legislative rule. 5 U.S.C. § 553; see Monahan v. Winn, 276 F. Supp. 2d 196, 212-13 (D. Mass. 2003) (Gertner, J.).

Review of an individual Bureau classification decision, however, is nonetheless available pursuant to section 706 since the classification procedures were established pursuant to section 4081, albeit for purposes of inmate placement. The Court can, therefore, review the Bureau's decision to assign Fox a "Sex Offender" Safety Factor under section 706.

1. Fox's Classification As A Sex Offender Was Not An Abuse Of Discretion

The Bureau has the authority to establish a system of classification of prisoners "according to the nature of the offenses committed, the character and mental condition of the prisoners, and such other factors as should be considered in [*90] providing an individualized system of discipline, care, and treatment [**28] of [prisoners]." 18 U.S.C. § 4081. Classification of a prisoner is required under 28 C.F.R. § 524.10 et. seq, Classification and Program Review of Inmates. 15 The Bureau issued the "Security Designation and Custody Classification Manual" -- Program Statement 5100.07 16 -- to effectuate the classification directives. See generally Program Statement 5100.07.

FOOTNOTES

15 This rule was enacted in accordance with proper "notice and comment" rulemaking procedures. See Control, Custody, Care, Treatment and Instruction of Inmates; Classification and Program Review of Inmates, 56 Fed. Reg. 30676 (July 3, 1991); Control, Custody, Care, Treatment and Instruction of Inmates; Classification and Program Review of Inmates, 56 Fed. Reg. 5302 (Feb. 8, 1991).

16 Program Statement 5100.07 can be best classified as a general statement of policy -- "statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power." Monahan, 276 F. Supp. 2d at 213. It therefore would not be subject to the "notice and comment" rulemaking requirements.


[**29] Given the broad discretion conferred by Congress to the Attorney General as delegated to the Bureau Director under section 4081, see 18 U.S.C. § 4081; 28 C.F.R. § 0.96, the Bureau's assignment of a "Sex Offender" Safety Factor to prisoners with prior state sex offenses cannot be found contrary to the statute or congressional intent. Classification of inmates is a matter within the discretion of prison officials. McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir. 1990) ("The Supreme Court has established a minimum intrusion' policy into the decisions of state prison administration that provides these official with wide discretion in the operation of prison facilities.") (citing Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974)); Schepis v. Maldonado, No. 0:04-0276-17BD, 2004 U.S. Dist. LEXIS 27453, at *7 (D.S.C. Oct. 20, 2004); see Sweet v. South Carolina Dep't of Corrections, 529 F.2d 854, 859 (4th Cir. 1975) (en banc) (describing federal courts' deference to prison administrators and all administrative matters unless the conditions rise to the level of a [**30] constitutional violation); Monahan, 276 F. Supp. 2d at 196.

Fox can challenge his individual classification as a sex offender if he can show that the Bureau's decision was "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A); see Murphy v. Derosa, No. 03-5887, 2005 U.S. Dist. LEXIS 23413, at *24 (D.N.J. Oct. 3, 2005) (slip op.). Gabriel v. Fleming, No. 4:03-CV-0937-Y, 2003 U.S. Dist. LEXIS 24373, at *4 (N.D. Tex. Dec. 31, 2003) ("Absent an abuse of discretion . . . a federal court will not interfere with administrative determinations regarding custodial classification of an inmate."). Fox can make no such showing.

The Amicus argues that because the "Sex Offender" Public Safety Factor classification incorporates the Sex Offender Notification Program Statement with its overly-inclusive definition of "sexual offenses", consideration of Fox's request for Community Center placement without the "Sex Offender" classification is warranted. Amicus Mem. at 14. The inclusion of those factors identified by the Sex Offender Notification Program statement is [**31] not improper for purposes of inmate classification. Though consideration of prior state offenses is contrary to congressional intent in enacting Section 4042(c), it is not contrary to Title 18, Section 4081 of the U.S. Code. Unlike section 4042(c), section 4081 does not suggest that the Bureau is limited [*91] in determining custody classifications or Public Safety Factors to consideration of prior federal crimes only. See also Day v. Nash, 2005 U.S. Dist. LEXIS 24539, at *7 (finding no abuse of discretion because the governing statutes, regulations, and program statement did not suggest that the Bureau was limited to consider only criminal conduct of particular recency). There are also multiple elements for which an inmate can be classified as a sex offender -- any offense referenced in the Sex Offender program statement; engaging in sexual contact with another person without obtaining permission to do so. Fox could be classifed as a sex offender based on either provision. Fox was classified based on a finding by the Bureau that, according to his record, he had a prior conviction for a sex offense. Fox does not challenge the accuracy of this finding. Since it is permissible [**32] for the Bureau to include prior state convictions in classifying inmates, it cannot be considered an abuse of discretion, arbitrary, or capricious for Fox to be assigned a "Sex Offender" Safety Factor.

2. Exclusion Of Inmates With "Sex Offender" Safety Factor From Community Center Placement Is Permissible

The central issue is whether the Bureau violates either section 3621 or section 3624 by categorically excluding inmates with "Sex Offender" Safety Factors from Community Center placement. The Bureau has statutory authority to determine an inmate's initial placement, considering the history and characteristics of the prisoner" and, "at any time, having regard for the same matters [i.e., the history and characteristics of an inmate], "direct the transfer of a prisoner from one penal or correctional facility to another." 17 18 U.S.C. § 3621(b). Day, 2005 U.S. Dist. LEXIS 24539, at *3. The broad discretion granted by Congress under this statute 18, see Goldings, 383 F.3d at 22, 28, is qualified [*92] only by an obligation under section 3624 to ensure the placement of a prisoner under pre-release conditions -- except where no [**33] such placement is practicable, 18 U.S.C. 3624; Goldings, 383 F.3d at 23. 19 As noted previously, section 3624 does not mandate Community Center placement.

FOOTNOTES

17 The statute provides:

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) of title 28.

In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another. The Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.

18 U.S.C. 3621(b). [**34]

18 See Yana Dobkin, Note, Cabining the Discretion of the Federal Bureau of Prisons and the Federal Courts: Interpretive Rules, Statutory Interpretation, and the Debate Over Community Confinement Centers, 91 Cornell L. Rev. 171, 199-206 (2005) (discussing the broad discretion granted the Bureau under section 3621 and the Department of Justice's inability to limit that discretion).

19 In Goldings, the First Circuit reconciled section 3624 with the discretion afforded the Bureau in section 3621(b), ruling that the Bureau was not bound by the time restrictions of section 3624(c) regarding Community Center placement, and that section 3621(b) authorized the Bureau to transfer an inmate to Community Center placement at any time. 383 F.3d at 25-26 (finding that the Bureau had discretion under section 3621(b) to transfer Goldings to a Community Center because a Community Center qualifies as a "place of imprisonment" for purposes of the statute).


The Bureau's policies generally prevent inmates with a "Sex Offender" Safety Factor from being placed with or transferred [**35] to a Community Center. The Bureau's policy statement on Community Center placement states that Inmates who are assigned a "Sex Offender" Safety Factor "shall not ordinarily participate in CCC referrals." Federal Bureau of Prisons, Program Statement 7310.04, Community Corrections Center (CCC) Utilization and Transfer Procedure at 10 (Dec. 16, 1998) ("Program Statement 7310.04"). In addition, the guidelines for inmate placement require that an inmate with a "Sex Offender" Safety Factor cannot obtain a security designation less than "low", preventing placement at a Community Center, where a "Community" security designation is required. See Statement 5100.07, ch. 2, at 1 (defining the "Community" designation as allowing participation in community-based programs). Transfer decisions are also made in accordance with these guidelines. Id. ch. 1, at 2.

Since Congress has not spoken to the precise issue, the question is whether the Bureau has "filled the statutory gap in a way that is reasonable in light of the legislature's revealed design." See Lopez v. Davis, 531 U.S. 230, 242, 121 S. Ct. 714, 148 L. Ed. 2d 635 (2001). The Court holds that the Bureau's interpretation, in light of the broad discretion [**36] afforded by Congress in determining inmate placement, is reasonable in making categorical exclusions. See id. "Even if a statutory scheme requires individualized determinations . . . the decisionmaker has the authority to rely on rulemaking to resolve a clearly certain issue of general applicability unless Congress clearly expresses an intent to withhold that authority. . . . Case-by-case decisionmaking in thousands of cases each year could invite favoritism, disunity and inconsistency." Id. at 243-44 (internal quotations and citations omitted, first alteration in original).

Both the classification guidelines and the Bureau policy against Community Center placement for inmates with "Sex Offender" Safety Factors constitute interpretive rules for purposes of judicial review. Interpretive rules -- rules that provide guidance for agency decisionmaking in specific situations but do not create rights, assign duties, or impose obligations -- are typically subject to much more expansive review in the courts than a legislative rule. Monahan, 276 F. Supp. 2d at 214. Interpretive rules, however, are exempt from the "notice and comment" rulemaking procedures [**37] of the Administrative Procedure Act. Warder v. Shalala, 149 F.3d 73, 79 (1st Cir. 1998) (citing 5 U.S.C. § 553(b)(3)(B)).

Although an interpretive rule, the classification guidelines' placement restrictions may be entitled to Chevron deference in light of the interstitial nature of the issue of inmate placement, the expertise of the Bureau, the complexity of administration of the statute, and the careful consideration [*93] the Bureau has given in developing the guidelines. Barnhart v. Walton, 535 U.S. 212, 221-222, 122 S. Ct. 1265, 152 L. Ed. 2d 330 (2002) (holding that an agency interpretation established through less formal means than "notice and comment rulemaking" may still be afforded judicial deference); see Program Statement 5100.07, at 3-4 (detailing the extensive procedures employed by the Bureau in developing and studying the classification guidelines).

The Court need not reach this issue, however, because even absent deference, both the classification guidelines and the Bureau's policy regarding this issue have persuasive force. Under the rule of Skidmore v. Swift, 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed. 124 (1944), an agency's interpretation is entitled [**38] to respect only to the extent that it has the power to persuade. See Navarro v. Pfizer Corp., 261 F.3d 90, 99 (1st Cir. 2001). The Court must weigh the "thoroughness evident in [the Program Statement's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Id. (quoting Skidmore, 323 U.S. at 140). The security considerations expressed by the Bureau in determining inmate placement via the classification guidelines and the thoroughness evident in making these determinations warrant the Court's acceptance of the guidelines' provision excluding inmates with "Sex Offender" Safety Factors from Community Center placement. Regarding Safety Factors, the Bureau notes:

There are certain demonstrated behaviors which require increased security measures to ensure the protection of society. There are nine Public Safety Factors (PSFs) 20 which are applied to inmates who are not appropriate for placement at an institution which would permit inmate access to the community (i.e., MINIMUM security). The application of a [**39] PSF overrides security point scores to ensure the appropriate security level is assigned to an inmate, based on his or her demonstrated current or prior behavior.



FOOTNOTES

20 The factors are "Disruptive Group", "Greatest Severity Offense", "Sex Offender", "Threat to Government Officials", "Deportable Alien", "Sentence Length", "Violent Behavior", "Serious Escape", "Prison Disturbance", "Juvenile Violence" (juvenile offender), and "Serious Telephone Abuse". Program Statement 5100.07, ch. 7, at 1-5.


Program Statement 5100.07, ch. 2, at 5.

"Inmate[s] whose behavior in the current term of confinement or prior history" meets the criteria for the application of a "Sex Offender" Safety Factor "shall be housed in at least a Low security level institution, unless the PSF has been waived." Id. ch. 7, at 2. The policy of excluding inmates with a "Sex Offender" Safety Factor from Community Center placement, found in Statement 7310.04, is based in part on the same security considerations expressed in the classification [**40] guidelines, which were subject to extensive review. The Court rules that the close connection between the classification guidelines and the Program Statement 7310.04 gives the latter the power to persuade the Court as to its reasonableness.

Fox's claim that he was denied Community Center placement on the basis of his refusal to participate in a mandatory sex offender program is essentially a claim that he was denied the grant of an exception to a Bureau policy not to place inmates with a "Sex Offender" Safety Factor in Community Centers. See Lee Decl., Ex. I, Response to Request For Administrative Remedy # 379884-F1, at 1-2 (indicating that inmates with a "Sex Offender" Safety Factor are not ordinarily [*94] eligible for Community Center placement, but a referral may have been made if Fox demonstrated "good institutional adjustment, including participating in recommended programs"). Yet Fox has no constitutional or statutory entitlement to such placement. Nor does participation in the program guarantee Community Center placement, thereby creating any entitlement. 21 Although the program is a mandatory assignment for "low"/"medium" security inmates with a "Sex Offender" Safety Factor, a recommendation or lack of recommendation for Community Center placement is determined based on participation in the voluntary components of the program. See Handbook at 4. These placement decisions are highly individualized determinations and not reviewable by the Court. See 18 U.S.C. 3625. At best, the policy of using participation to determine whether a Community Center placement is warranted can be reviewable only for abuse of discretion under section 3624 or section 3621. There was no abuse of discretion here.

FOOTNOTES

21 The Bureau outlines standards that can result in custody change consideration, including the level of responsibility demonstrated by the inmate through the degree of program involvement and the nature of interaction with staff and other inmates. See Program Statement 5100.07, ch. 8, at 15-18. Community Center placement can result from this custody change consideration or through an "Institution Referral for CCC Placement" signed and approved by the Warden. Id. ch. 8, at 19.


[**41] III. CONCLUSION

Accordingly, the petition for declaratory judgement is ALLOWED. A judgement is hereby entered in favor of the Petitioner, Charles Fox, declaring that classification as a sex offender for purposes of Title 18, Section 4042(c) of the U.S. Code can only be based on a federal offense and that any classification based on a state offense exceeds the Bureau's statutory authority and is inconsistent with congressional intent.

The Bureau is hereby enjoined from applying the provisions of Section 4042(c) to Fox. Further, any notice sent to state or local authorities informing them of Fox's release [**42] must explicitly state that such notice is not pursuant to Section 4042(c) and that registration is not required pursuant to Section 4042(c).

Fox's habeas petition for denial of transfer is DENIED.

SO ORDERED.

WILLIAM G. YOUNG

DISTRICT JUDGE

UNITED STATES of AMERICA v. DONALD E. WHITNEY III, Defendant.

Criminal No. 05-40005-FDS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

October 26, 2006, Decided
October 26, 2006, Filed

SUBSEQUENT HISTORY: As Amended October 26, 2006.

COUNSEL: [*1] For Nicholas Rheault, Defendant: John G. Swomley, LEAD ATTORNEY, Swomley & Associates, Boston, MA.

For Donald E. Whitney, III, Defendant: Daniel J. Bennett, LEAD ATTORNEY, Torney, Mahoney, Diamond & Bennett, Quincy, MA.

For USA, Plaintiff: David H. Hennessy, LEAD ATTORNEY, US Attorney's Office, Worcester, MA.

JUDGES: F. Dennis Saylor IV, United States District Judge.

OPINION BY: F. Dennis Saylor IV

OPINION

AMENDED MEMORANDUM AND ORDER VACATING PRIOR ORDER FOR HEARING ON MENTAL DISEASE AND FOR PSYCHIATRIC EXAMINATION

SAYLOR, J.

This is a criminal prosecution for distribution of the drug ecstasy that presents a difficult, if largely unrelated, question concerning possible civil commitment under 18 U.S.C. § 4244.

Defendant Donald E. Whitney III has pleaded guilty to federal drug trafficking charges, but has not yet been sentenced. The Presentence Report prepared by the Probation Department in anticipation of sentencing revealed certain information concerning the defendant's personal history, including the fact that he had been committed to the Massachusetts Department of Youth Services from ages 14 to 21 as a result of committing sexual assaults on younger children. Upon review of the Presentence Report, the government moved for a hearing [*2] and examination pursuant to 18 U.S.C. § 4244(a) and (b) to determine whether defendant should be civilly committed to the Bureau of Prisons for psychiatric care or treatment, independent of any sentence that might be imposed on the drug trafficking charges.

The Court granted that motion and ordered defendant to submit to a psychiatric examination at the Bureau of Prisons. Defendant, however, indicated that he would assert his Fifth Amendment rights and refuse to answer any questions under such circumstances. Although the Fifth Amendment right against self-incrimination does not generally attach in civil commitment proceedings, it nonetheless raised questions, in the context of this case, whether an involuntary interview would be a useful exercise. The Court then ordered that various records, including psychiatric records, from the Massachusetts Department of Youth Services be provided to BOP for analysis and review, after redactions to preserve the psychotherapist-patient privilege, to determine what BOP's position as to possible commitment might be.

After review of the records, the Chief Psychiatrist at the Bureau of Prisons advised the Court that the BOP [*3] could not give the Court a formal report or evaluation without an examination of the defendant, and that there was nothing in the records to indicate that defendant had ever been diagnosed with a mental illness that would require hospitalization for purposes of treatment. Upon receipt of that information, and in consideration of all the circumstances, the government elected to abandon any further efforts under § 4244 and to proceed to sentencing. The Court agreed to vacate its prior orders calling for a hearing and examination. This Memorandum and Order sets forth the background of this matter and the Court's reasons for vacating the orders.

I. Background

Defendant Donald E. Whitney III was born on April 14, 1983. In 1997, when he was 14 years old, he committed sexual assaults on two boys, aged 8 and 9. He was adjudged delinquent and committed to the custody of the Massachusetts Department of Youth Services. In connection with his initial commitment, and periodically thereafter, he was interviewed by psychiatrists, psychologists, social workers, and others, who created various reports and documents reflecting those communications.

On April 14, 2004, his 21st birthday, [*4] defendant was discharged from DYS custody. In November and December 2004, he committed the drug offenses at issue in this proceeding. On February 2, 2005, he was indicted on one count of conspiracy to distribute ecstasy in violation of 21 U.S.C. § 846 and three counts of possession with intent to distribute and distribution of ecstasy in violation of 21 U.S.C. § 841(a)(1). On August 25, 2005, he pleaded guilty to those charges.

The matter was originally set for sentencing on November 17, 2005. 1 On November 18, 2005, the government moved pursuant to 18 U.S.C. § 4244(a) for a hearing on the present mental condition of the defendant. It also moved for a psychiatric or psychological examination under 18 U.S.C. § 4244(b). 2 The basis of the government's motion was the fact that the Presentence Report set forth "substantial information that defendant may be suffering from a qualifying mental disease or defect." In particular, the government contended that "Whitney's history shows that he is a dangerous offender with a significant potential to commit very serious crimes, including crimes against [*5] children," and that the Presentence Report presented Whitney "as a serious sexual offender, who is stimulated by fantasies involving a mixture of sex and violence, and who is likely to commit sexual and violent offenses, if he is not treated and supervised."

FOOTNOTES

1 According to the Presentence Report, the advisory guideline imprisonment range under the United States Sentencing Guidelines applicable to this matter is 27 to 33 months. The maximum term of imprisonment is 20 years. 21 U.S.C. § 841(b)(1)(C). Defendant has been detained awaiting sentencing.

2 The statute provides in relevant part as follows:

(a) Motion to determine present mental condition of convicted defendant.--A defendant found guilty of an offense, or the attorney for the Government, may, within ten days after the defendant is found guilty, and prior to the time the defendant is sentenced, file a motion for a hearing on the present mental condition of the defendant if the motion is supported by substantial information indicating that the defendant may presently be suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility. The court shall grant the motion, or at any time prior to the sentencing of the defendant shall order such a hearing on its own motion, if it is of the opinion that there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility.

(b) Psychiatric or psychological examination and report.--Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court . . . .

18 U.S.C. §§ 4244(a),(b).


[*6] Defendant opposed the government's motions on three grounds: (1) that the motion was untimely; (2) that the alleged mental disease or defect does not relate in any way to the charged crime; and (3) that the government does not have "substantial information" that the defendant is presently suffering from a mental disease or defect. Defendant also indicated that he intended to assert a Fifth Amendment privilege to refuse to respond to any questions put to him by a psychiatrist as part of a court-ordered examination that might lead to a custodial confinement.

By memorandum and order dated January 18, 2006, the Court rejected those arguments and granted the government's motion for a hearing and psychiatric examination. As to the claim of Fifth Amendment privilege, the Court noted that the privilege does not generally attach in circumstances where a truthful answer might result in a civil commitment, but could attach where a truthful answer might incriminate a defendant in future criminal proceedings or increase his punishment.

After a further hearing on February 6, 2006, the Court ordered that the records from DYS in the possession of the United States Probation Department should be [*7] provided to the BOP no later than February 27 for review and analysis. Defendant then filed a motion on February 22, for an order to prevent the dissemination of the records. In essence, defendant contended that the release of DYS records from the Probation Department to the BOP would violate Mass. Gen. Laws ch. 119, § 60A (which provides generally that state court records in certain delinquency proceedings should be withheld from public inspection except with the consent of a justice of the juvenile court) and ch. 233, § 20B (which establishes a psychotherapist-patient privilege). On March 9, the Court stayed its order requiring the release of the documents to the BOP pending their in camera review and further briefing on the privilege issues. After further proceedings and an in camera review of the documents, the Court ordered on August 11 that they be produced in redacted form to the BOP.

On August 29, 2006, the Court received the following communication from Shelley R. Stanton, M.D., the Chief Psychiatrist of the Federal Bureau of Prisons:

I have reviewed the [DYS] records [of Mr. Whitney]. We cannot give the court a formal report [*8] or evaluation without examination of Mr. Whitney. However, there is nothing in the records to indicate that he has ever been diagnosed with a mental illness other than Attention Deficit Disorder. The intent of the 4244 statute is to provide for hospital treatment for a severely mentally ill person, and once the person has recovered then he goes back to court for final sentencing. ADD does not require hospitalization and would not be considered a mental illness in need of treatment under this statute. However, that said, we cannot even give you an opinion as to whether he has ADD, since he has not received an evaluation from us.



On September 14, 2006, the Court held a status conference in this matter, during which it inquired of the government whether it intended to pursue the matter any further. Counsel for the government indicated that, under the circumstances, it would withdraw its request for a hearing and examination. The Court agreed to vacate its prior orders and to set sentencing for October 25, 2006.

II. Analysis

This case sits at an odd juncture. The defendant is before the Court for sentencing on federal drug trafficking charges--charges that have nothing [*9] to do with whether he is a sexually dangerous person. However, the statute at issue, 18 U.S.C. § 4244, by its terms may be invoked only between the time of conviction and the time of sentencing, and therefore the Court cannot postpone consideration of the issue until after the defendant has served his sentence. If the Court is to require civil commitment of the defendant, it must make that decision before it imposes sentence.

Furthermore, the statute is directed only to the treatment of the defendant: it applies where the defendant requires "custody for care or treatment [of mental disease or defect] in a suitable facility." It therefore does not appear to address the situation where civil commitment may be desirable for the protection of the public. Compare Mass. Gen. Laws ch. 123A §§ 1 to 16 (providing procedures for diagnosis and treatment of sexually dangerous persons in order both to protect society and secure and rehabilitate the affected persons). In this case, there is no evidence that the defendant needs to be placed in custody "for care or treatment."

Complicating matters further is the issue of the assertion of the [*10] defendant's Fifth Amendment rights. While the Fifth Amendment does not generally attach in civil commitment proceedings, it may nonetheless apply where a truthful answer might incriminate a defendant in future criminal proceedings or increase his punishment. See Allen v. Illinois, 478 U.S. 364, 372, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986); Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981). More fundamentally, the cornerstone of any psychiatric or psychological examination is an interview of the patient. See, e.g., MICHAEL J. VERGARE, ET AL., PRACTICE GUIDELINE FOR THE PSYCHIATRIC EVALUATION OF ADULTS (2d Ed. 2006) at 25 ("The psychiatrist's primary assessment tool is the direct face-to-face interview of the patient."). Indeed, in this case, the Bureau of Prisons Chief Psychiatrist has stated that she cannot give the court a formal analysis or evaluation of the defendant without an examination. Where, however, the patient refuses to answer questions, refuses to cooperate, or answers only grudgingly, the usefulness of the examination may be greatly diminished, if not entirely negated.

Thus, it is highly doubtful whether the government would be able to establish that the defendant is in need [*11] of custodial treatment (as opposed to custody for public protection). Under the circumstances, the United States has concluded that it will not attempt to continue to proceed under the statute. This Court agrees.

After the government's decision to abandon its efforts under § 4244 counsel for the government became aware (and advised the Court) that on July 26, 2006, Congress enacted 18 U.S.C. § 4248, which created a statutory mechanism permitting the civil commitment of sexually dangerous persons under certain circumstances. Under § 4248(a), among other things, the Department of Justice may institute civil commitment proceedings against a person who is in the custody of the Bureau of Prisons if that person is certified to be sexually dangerous. Defendant was sentenced on October 25, 2006, and is therefore now in the custody of the Bureau of Prisons. The Court takes no position on the applicability of § 4248 to this case, and the government has not invoked the statute other than to call it to the Court's attention. Whether it is appropriate to invoke it as to this defendant [*12] will await further developments.

III. Conclusion

For the foregoing reasons, the Court's prior Order dated January 18, 2006, requiring a hearing on the present mental condition of defendant Donald E. Whitney III, pursuant to 18 U.S.C. § 4244(a), and a psychiatric or psychological examination pursuant to § 4244(b), is hereby VACATED.

So Ordered.

/s/ F. Dennis Saylor IV

United States District Judge

IMMANUEL SIMMONS, Petitioner, v. JOHN NASH, Warden, Respondent.

CIVIL ACTION NO. 04-4334 (JEI)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

361 F. Supp. 2d 452

March 30, 2005, Decided

COUNSEL: [**1] For Immanuel Simmons, Petitioner, Pro Se, Newark, NJ.

For OFFICE OF THE U.S. ATTORNEY BY: John Andrew Ruymann, Esq., Trenton, NJ.

JUDGES: HONORABLE JOSEPH E. IRENAS.

OPINION BY: JOSEPH E. IRENAS

[*452] OPINION

IRENAS, Senior District Judge:

Presently before this Court is the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 [*453] by Immanuel Simmons ("Petitioner"), who is currently serving a sentence for a federal narcotics conviction. Petitioner is contesting his classification by the Federal Bureau of Prisons ("BOP") under 18 U.S.C. § 4042(c) as a sex offender, a classification which triggers certain notice and registration requirements.

A prisoner is classified as a sex offender if such person "was convicted of" certain enumerated offenses. § 4042(c)(4). The core issue in this case is whether a prisoner can be classified as a sex offender under § 4042(c) based solely on the crime for which he is currently serving time, or whether such classification can be based on a prior federal or state conviction. For the reasons set forth below, the Court holds that Petitioner cannot be classified as a sex offender pursuant to § [**2] 4042(c) based on a 1983 New York State conviction.

I.

On August 20, 1997, Petitioner was sentenced by the United States District Court for the Southern District of Florida to a term of 120 months imprisonment after he was found guilty of conspiracy to manufacture and possess marijuana, in violation of 21 U.S.C. § 846, and manufacturing and possessing marijuana with the intent to distribute marijuana, in violation of 21 U.S.C. § 841. (Pet., at p.2; Resp't Answer, at p.2.) Petitioner appealed his sentence. The Eleventh Circuit denied his appeal on July 2, 1999. Assuming Petitioner receives all available Good Conduct Time, his projected release date is April 23, 2005.

Over twenty years ago, on July 13, 1983, Petitioner was sentenced by the New York Supreme Court to a term of nine months imprisonment after Petitioner pled guilty to the offense of attempted promotion of prostitution, in the second degree, N.Y.P.L. § 230.30(2). (Pet'r Mem., at p.1.) According to Respondent, Petitioner's crime involved the advancement of and profiting from the prostitution of a 14 year old girl. 1

FOOTNOTES

1 We have examined the Pre-Sentence Investigation Report, which was filed under seal by Respondent.


[**3] Based on this 1983 conviction, Petitioner was initially deemed ineligible for early release upon completion of a Drug Abuse Program. On August 6, 2004, after Petitioner filed for an administrative remedy with the regional office of the BOP and supplied documentation regarding his New York conviction and New York law, he was ultimately deemed eligible for early release. 2 (Pet'r Mem., at p. 2.)

FOOTNOTES

2 On August 12, 2004, the Drug Abuse Program granted early release pursuant to 18 U.S.C. § 3621(e). Petitioner contends that if this issue had been resolved when he first raised it in October, 1998, he could have been released in October, 2003.


The BOP also classified Petitioner as a "sex offender" based on the New York conviction. Such a classification under 18 U.S.C. § 4042 (c) creates a notice requirement. At some point, the BOP informed Petitioner that it intended to provide notification under § 4042(c). (Pet'r Mem., at p. 4-5.) Since July 23, 2003, Petitioner has [**4] pursued administrative remedies, 3 asserting that (1) the notice scheme of § 4042(c) is triggered only by the offense for which a prisoner is currently incarcerated; and (2) even if past convictions could trigger the notice requirement, his New York conviction is not, substantively, of the type that would trigger § 4042. He has also claimed constitutional violations under the Ex Post Facto Clause and the Due Process Clause.

FOOTNOTES

3 Respondent concedes that Petitioner has exhausted his administrative remedies. (Resp't Answer, at p.5.)


[*454] II.

The BOP is mandated by 18 U.S.C. § 4042(c) to provide notice of the release of a prisoner who "was convicted of" certain specified sexual offenses. The BOP is directed to give notice to the law enforcement offices of the State and local jurisdictions in which the sex offender will reside. § 4042(c)(1). The BOP's notice must include the person's name, his criminal history, any restrictions on conduct or any other conditions of release, where he will reside, [**5] and information that he is subject to a registration requirement as a sex offender. § 4042(c)(2).

A person is classified as a sex offender "if the person was convicted of" any federal offenses specified in § 4042(c)(4)(A) - (D), or of "any other offense designated by the Attorney General as a sexual offense for the purposes of this subsection." § 4042(c)(4)(E).

The Attorney General has delegated to the Director of the BOP the authority to designate the additional crimes which might trigger sex offender classification. 28 C.F.R. § 571.71. These additional offenses designated by the Director are found in 28 C.F.R. § 571.72 and include "any offense under the law of any jurisdiction that involved" a broadly described range of illegal sexual conduct. By referring to crimes committed "under the law of any jurisdiction," the regulation appears to interpret § 4042(c) to permit classification as a sex offender based on previous convictions, since a prisoner in a federal institution would not be serving time for a state offense. Whether this is a permissible interpretation of the statutory language is at the core of this case.

Further [**6] interpretation of § 4042(c) can be found in BOP Program Statement 5141.02, which identifies both the current and past convictions as possible triggers for the notification requirement. FEDERAL BUREAU OF PRISONS, U.S. DEPARTMENT OF JUSTICE, PROGRAM STATEMENT 5141.02 (Dec. 14, 1998). "This Program Statement applies to any prisoner in the Bureau's custody who is: . . . classified with a Public Safety Factor (PSF) - Sex Offender by the Bureau based upon a past or current offense." P.S. 5141.02, at 6. This Program Statement is consistent with the regulation found at 28 C.F.R. § 571.72.

III.

Petitioner claims that the BOP has exceeded its statutory authority and improperly applied § 4042(c) by identifying him as a "sex offender" and indicating that it will provide notice pursuant to the Statute, thus implicating state and federal registration programs. Respondent first questions whether this Court has jurisdiction to hear this matter under the Habeas statute, 28 U.S.C. § 2241.

In Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998), the Third Circuit upheld the district court's finding that it lacked subject matter jurisdiction [**7] over the habeas petition of a prisoner who challenged the BOP's classification pursuant to 18 U.S.C. § 4042(b). 4 However, the Third Circuit reversed the district court's dismissal and converted the habeas petition into a more appropriate mechanism for relief, a request for a declaratory judgement. Id.

FOOTNOTES

4 This case arose under § 4042(b), which provides for classification of a prisoner who "was convicted of" certain described drug trafficking crimes or crimes of violence. Like § 4042(c) it too provides for notice to law enforcement of the release of such a prisoner.


The Third Circuit noted that a mere "mislabeling" of a suit as a habeas petition when it should more appropriately have been brought as a civil rights suit "is not determinative." Id. It is within the Court's discretion to grant leave to amend the petition or to convert the petition into [*455] the proper request for relief, especially in pro se litigation. Id. The Third Circuit converted the petition into an action [**8] seeking a declaratory judgement, under 28 U.S.C. §§ 1331 and 2201, and decided the case on the merits. Id.

The Declaratory Judgment Act, is not an independent grant of jurisdiction. Federal question jurisdiction under § 1331 must have an independent source. There are two ways in which a petitioner can raise a federal question which would provide federal question jurisdiction to seek a declaratory judgment under § 2201: (i) to the extent that a petitioner raises constitutional challenges to the BOP classification, his recourse is an action under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), against the prison officials responsible for classifying him and sending notice; or (ii) to the extent a petitioner challenges the BOP interpretation of § 4042(c), his claim would be based on 5 U.S.C. § 702 of the Administrative Procedure Act ("APA"). See Estrella v. Menifee, 275 F. Supp. 2d 452, 461, 275 F. Supp. 2d 452, 2003 U.S. Dist. LEXIS 12460, *20 (S.D.N.Y. 2003).

Agency action must be final to be subject to judicial review. Id. at 461, 2003 U.S. Dist. LEXIS 12460 at *20; see also Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003) ("The APA [**9] authorizes only a challenge to a 'final' action of an 'agency.'"). Petitioner's scheduled release date is only weeks away, so that the BOP's classification of Petitioner as a "sex offender" is a final decision for purposes of judicial review. Since 18 U.S.C. § 4042(c) does not vest the Attorney General with authority to determine whether the statutory language applies only to the current crime of conviction or to prior convictions as well, the exception to jurisdiction in 5 U.S.C. § 701(a) (2) 5 does not apply. See M.B. v. Quarantillo, 301 F.3d 109, 111-12 (3d Cir. 2002). Nor is the court aware of any statutory mandate which would bar judicial review of such a determination. See 5 U.S.C. § 701(a) (1). 6

FOOTNOTES

5 Judicial review is not available if "(2) agency action is committed to agency discretion by law."

6 Judicial review is not available if "(1) statutes preclude judicial review."


Consistent with Royce, the Court [**10] finds that there is federal question jurisdiction, and this matter may proceed as an action for declaratory judgment under 28 U.S.C. § 2201.

IV.

The BOP has erroneously, and without authority, construed § 4042(c) more expansively than Congress intended by considering a prisoner's entire criminal history.

1.

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), dictates that when a statute is silent or ambiguous, the courts must defer to the responsible administrative agency's interpretation so long as that interpretation is "based on a permissible construction of the statute." A statute that is not ambiguous, however, must be given its unambiguously intended effect by the courts, as well as by the agency. Id. at 842-43. At issue in this case is whether the BOP's statutory interpretation found in 28 C.F.R. § 571.72, and the corresponding P.S. 5141.02, give § 4042(c) the effect that Congress plainly intended.

2.

Henrikson v. Guzik, 249 F.3d 395 (5th Cir. 2001) analyzed a petitioner's claim [*456] that he had been wrongly classified by the BOP as a [**11] violent offender under § 4042(b) based on a prior offense, other than the offense for which he was serving his sentence. 7 The Fifth Circuit held that Congress intended § 4042(b) to require notification only if the prisoner's current conviction meets the statutory criteria. Id. at 396.

FOOTNOTES

7 While Henrikson involved § 4042(b), which covers notice provisions for released prisoners convicted of drug trafficking and crimes of violence rather than sex offenses covered by § 4042(c), the relevant statutory language is almost identical. Respondent implicitly acknowledges the similarity by relying on Estrella v. Menifee, 275 F. Supp. 2d 452, 275 F. Supp. 2d 452, 2003 U.S. Dist. LEXIS 12460 (S.D.N.Y. 2003), which, like Henrickson, ruled on § 4042(b). Hendrikson also recognized that a petition under 28 U.S.C. § 2241 was inappropriate and treated the petition as a request for declaratory relief pursuant to 28 U.S.C. §§ 1331 and 2201. 249 F.3d at 397 n.4.


In interpreting [**12] the Statute, the Fifth Circuit examined the three subsections of § 4042(b). Section 4042(b)(1) lays out the notification scheme. The requirement of notification applies only when a prisoner is released on supervised release or when there is a change of address while on supervised release, and ends when supervised release terminates and the full sentence has been served. The Fifth Circuit found that the notification scheme "seems virtually part of the sentence" and held that it would be "illogical to impose the notification requirement to run with the sentence for a crime that does not itself trigger notification." Id. at 398-99. A parallel provision can be found in § 4042(c)(2).

Section 4042(b)(2)(B) provides that the notice shall include "the prisoner's criminal history, including a description of the offense of which the prisoner was convicted." The Fifth Circuit found that Congress "clearly" intended for § 4042(b)(2)(B) "to refer to the current conviction, as it was obviously clarifying that it intended 'criminal history' to include the current conviction." Id. at 399. Section 4042(c)(2) specifically cross references § 4042(b)(2) for the contents [**13] of the notice.

Section 4042(b)(3) defines which prisoners are subject to this notice scheme: "A prisoner is described in this paragraph if the prisoner was convicted of . . . ." § 4042(b)(3). The court found the language of § 4042(b)(3), "if the prisoner was convicted of," to "implicitly refer to a single event--the current conviction." Id. at 399. The Fifth Circuit noted that if Congress had intended for a prisoner's past convictions to serve as a trigger for § 4042(b)'s notice requirement, it would have used "words such as 'if the prisoner has been convicted of.'" Id. The "was convicted of" language is also found in § 4042(c)(4).

After "an examination of the statute's text and overall scheme," the Fifth Circuit concluded that the clear intent of Congress and the plain meaning of the Statute "was only [to] require [] the Bureau to notify if the prisoner's current conviction was for a crime of violence or a drug trafficking crime." Id. 8 Given the similarity of statutory language and the specific cross reference to § 4042(b)(2), the Hendrikson analysis seems equally valid when applied to § 4042(c).

FOOTNOTES

8 While Hendrikson ultimately found that the § 4042(b) was not ambiguous, it initially determined that the relevant Program Statement, P.S. 5110.12 (as in effect prior to August 30, 2000, when it was superceded by P.S. 5110.15) was not entitled to Chevron deference (Christensen v. Harris County, 529 U.S. 576, 146 L. Ed. 2d 621, 120 S. Ct. 1655 (2000)), but only to the more limited respect provided in Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944) and Reno v. Koray, 515 U.S. 50, 132 L. Ed. 2d 46, 115 S. Ct. 2021 (1995). Id. at 397-98. Since P.S. 5141.02 is consistent with 28 C.F.R. § 571.72, which was adopted pursuant to Congressional direction contained in § 4042(c)(4)(E), Chevron deference might be appropriate if this Court were to find the relevant statutory language ambiguous. There is no comparable C.F.R. regulation implementing or construing § 4042(b)(3).


[**14] [*457] The similarity of § 4042(b) and § 4042(c) and the logic of Hendrickson lead this Court to hold that § 4042(c) is not ambiguous and clearly provides that only the current, federal offense can act as a trigger for the notification requirement. The BOP's implementation of § 4042(c)(4)(E) through 28 C.F.R. § 571.72 and P.S. 5141.02 must adhere to the plain meaning of the Statute. To the extent that they include as designated offenses convictions other than the current, federal offense for which the prisoner is incarcerated, these regulations are invalid.

3.

Section 4042(c)(4)(A) - (D) lists offenses that would call for a classification of "sex offender," all of which are federal crimes. 9 This list of specific federal offenses is followed by § 4042(c)(4)(E), which provides that additional offenses may be "designated by the Attorney General as a sexual offense for the purposes of this subsection." This authority was delegated to the Director of the BOP who exercised it with the adoption of 28 C.F.R. § 571.71 and P.S. 514.1.02. Section 571.71 included in its listing certain types of sexual offenses "under the law of any jurisdiction. [**15] "

FOOTNOTES

9 Section 4042(c)(4) (A)-(D) refer to the following federal crimes: 18 U.S.C. § 1201 (kidnaping, if it involves a minor victim), § 2241 (aggravated sexual abuse), § 2242 (sexual abuse), § 2243 (sexual abuse of a minor ward), § 2244 (abusive sexual conduct), § 2245 (sexual abuse resulting in death), § 2247 (repeat offenders), § 2251 (sexual exploitation of children), § 2251A (selling or buying of children), § 2252 (certain activities relating to material involving the sexual exploitation of minors), § 2252A (certain activities relating to material constituting or containing child pornography), § 2257 (record keeping requirements), § 2258 (failure to report child abuse), § 2260 (production of sexually explicit depictions of a minor for importation into the United States), § 2421 (transportation generally), § 2422 (coercion and enticement), § 2423 (transportation of minors), § 2424 (filing factual statement about alien individual). See P.S. 5141.02, at 3.


The doctrines [**16] of noscitur a sociis and ejusdem generis can be helpful in analyzing whether the regulations implementing § 4042(c)(4)(E) properly included state law convictions. See 2A NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION §§ 47:16-17 (6th ed. 2000) [hereinafter SUTHERLAND STATUTORY CONSTRUCTION] . In its practical application, noscitur a sociis "means a word may be defined by an accompanying word, and ordinarily the coupling of words denotes an intention that they should be understood in the same general sense." Id. at § 47:16; see also Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 6 L. Ed. 2d 859, 81 S. Ct. 1579, 1961-2 C.B. 254 (1961) ("The maxim noscitur a sociis. . .is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress").

Ejusdem generis expresses the idea that general words which follow specific words in a statutory enumeration are interpreted so that "the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Id. at § 47:17; see also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15, 149 L. Ed. 2d 234, 121 S. Ct. 1302 (2001). [**17] 10

FOOTNOTES

10 Before utilizing these doctrines, a Court must first examine congressional intent. See Jarecki, 367 U.S. at 307 (noscitur a sociis is not "an inescapable rule"); N.J. Dep't of Envtl. Prot. and Energy v. Gloucester Envtl. Mgmt. Svs., Inc., 866 F. Supp. 826 (D.N.J. 1984) (regarding ejusdem generis). We have determined that the congressional intent in adopting § 4042(c) was to classify prisoners as sexual offenders based only on the offense for which a prisoner is currently serving a federal sentence.


[*458] The more general "any other offense" in § 4042(c)(4)(E) should be interpreted to include only the same type or kind of crime as the specific offenses listed in § 4042(c)(4)(A) - (D). Thus, "any other offense" should be limited to federal offenses, and any additional offense designated by the Attorney General should be a crime under federal law. 11 Since § 4042(c) deals only with federal prisoners, state convictions by definition can refer only to prior convictions, not [**18] the conviction for which the prisoner is actually serving his sentence.

FOOTNOTES

11 Cf. Washington State Dep't of Soc. & Health Svs. v. Estate of Keffeler, 537 U.S. 371, 382-83, 154 L. Ed. 2d 972, 123 S. Ct. 1017 (2003). In Washington State Dep't of Soc. & Health Svs., the Supreme Court examined a section of the Social Security Act that protected benefits from "execution, levy, attachment, garnishment, or other legal process." Id. Utilizing the cannons of noscitur a sociis and ejusdem generis, the Court held that "'other legal process' should be understood to be process much like the processes of execution, levy, attachment, and garnishment. . . ." Id. at 385.


Limiting the authority of the Attorney General under § 4042(c)(4)(E) to designate only federal crimes is consistent with this Court's previous determination that the classification of a prisoner as a sex offender can only be based on the current crime of conviction. To the extent that 28 C.F.R. § 571.72 and P.S. 5141.02 purport [**19] to interpret § 4042(c)(4)(E) to include state convictions, this interpretation runs counter to congressional intent in adoption the statute.

4.

In support of its argument that the BOP's interpretation should stand as is, Respondent relies on two out-of-circuit district court decisions in which challenges similar to that of Petitioner's were dismissed. In Montalvo v. Snyder, 207 F. Supp. 2d 581, 582 (E.D. Ky. 2002), the petitioner claimed that the BOP "wrongly applied a sexual offender classification to him." The petitioner was serving a sentence on a federal firearm charge, but was classified based on a prior conviction of criminal sexual abuse under Illinois law. 12 Id. The court dismissed the petition, finding that the classification was appropriate and that his constitutional challenges were without merit. Id. at 586-88 (providing a detailed discussion of the petitioner's constitutional claims). The court did not even discuss a possible non-constitutional claim for a declaratory judgment under the APA. Its two references to Hendrikson are murky. First, Montalvo reports that petitioner forwarded a copy of that opinion "in support [**20] of his Ex Post Facto claim," id. at 582, even though Hendrikson makes no reference to that theory in its opinion. 13 Then, at the end of its opinion, the court suggests that Hendrikson is distinguishable, but offers no discussion as to why.

FOOTNOTES

12 The petitioner was convicted of Criminal Sex Abuse when he was 18 years old in Cook County Circuit Court and was sentenced to one year of supervision. Id. at 582.

13 Apparently, the Hendrikson court found all petitioner's constitutional claims to be without merit. Hendrickson, 249 F.3d at 397, n.3.


Respondent also cites to Estrella v. Menifee, 275 F. Supp. 2d 452, 275 F. Supp. 2d 452, 2003 U.S. Dist. LEXIS 12460 (S.D.N.Y. 2003), in which the district court found that a petitioner's APA-based claim for a declaratory judgment failed because there was no "final" agency action as required by 5 U.S.C. § 704. Id. at 461. The petitioner in that case was still in the middle of an 18 year sentence and his classification [*459] [**21] as a violent offender would be subject to repeated review during the remainder of his term. Id. at 462. As noted earlier, Petitioner in this case is soon due for release and the BOP action can fairly be described as final. To the extent that Estrella dismissed the constitutional claims raised by the petitioner, id. at 457-459, the case is irrelevant to the instant decision which is in no way based on any alleged constitutional violations. 14

FOOTNOTES

14 Our holding in this case makes it unnecessary for the Court to consider Petitioner's argument that (i) applying 18 U.S.C. § 4042(c) to him violates his Constitutional rights under the Ex Post Facto Clause and the Due Process Clause or (ii) his New York conviction is not substantively one that should be classified as a sexual offense.


V.

For the reasons set forth above, the Petition will be converted from one seeking habeas corpus relief under 28 U.S.C. § 2241 to an action seeking declaratory [**22] relief under 28 U.S.C. §§ 1331 and 2201. For the reasons set forth above, this Court will enter a judgment in favor of the Petitioner declaring that classification as a sex offender for purposes of 18 U.S.C. § 4042(c) can only be based on the offense for which a federal prisoner is currently serving a sentence and that any such classification based on a prior state court conviction is inconsistent with congressional intent. Noting in this Opinion or the Order or Judgment entered pursuant hereto shall be deemed to affect the Petitioner's rights or obligations under any other state or federal law dealing with the registration of sex offenders or any notification requirements triggered by such registration.

Dated: March 30, 2005

s/ Joseph E. Irenas

JOSEPH E. IRENAS S.U.S.D.J.

ORDER FOR DECLARATORY JUDGEMENT

IRENAS, Senior District Judge:

This matter having appeared before the Court upon Immanuel Simmons' petition for relief, the Court having considered the submissions of parties, for the reasons set forth in an Opinion issued by this Court, which findings of fact and conclusions of law are incorporated [**23] herein by reference, and for good cause appearing,

IT IS on this 30th day of March, 2005,

ORDERED THAT:

1. The Petition of Immanuel Simmons is CONVERTED from one seeking habeas corpus relief under 28 U.S.C. § 2241 to an action seeking declaratory relief under 28 U.S.C. §§ 1331 and 2201; and

2. A judgment is hereby ENTERED in favor of the Petitioner DECLARING that classification as a sex offender for purposes of 18 U.S.C. § 4042(c) can only be based on the offense for which a federal prisoner is currently serving a sentence and that any such classification based on a prior state court conviction is inconsistent with congressional intent; and

3. The Bureau of Prisons is hereby RESTRAINED and ENJOINED from applying the provisions of 18 U.S.C. § 4042(c) to the Petitioner, Immanuel Simmons.

s/ Joseph E. Irenas

JOSEPH E. IRENAS

Senior United States District Judge