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BOP May Not Foreclose Transfer to Community Corrections Center Based on Length of Remaining Sentence
The Second Circuit U.S. Court of Appeals has held that federal Bureau of Prisons (BOP) prisoners seeking transfers to community correctional centers (CCC) before reaching a point when they have the greater of six months or ten percent of their terms remaining to serve, cannot be denied such transfers solely because they have not yet reached that temporal milestone.
Elliot Levine, serving 15 months for bank fraud, sought habeas corpus relief from the Sentencing Act, 18 U.S.C. §§ 3621(b) and 3624(c), because the BOP had interpreted the Act so as to constrain the timing of his transfer to a CCC. Levine filed two writ petitions, one challenging the former BOP regulation (“2002 policy”) and the other taking on the BOP’s later 2005 variant. Whereas the 2002 policy appeared ambiguous as to when a prisoner might be eligible for preferential placement in a CCC, the revised 2005 policy removed all discretion from the remaining-time provision.
Levine’s complaint was that while the statute (§ 3621(b)) provided five factors guiding such discretionary placement, the BOP’s conflicting remaining-time provision (28 C.F.R. § 570.21(a)) unlawfully barred all discretionary consideration.
First, the court ruled that the controversy was not in excess of the court’s jurisdiction because although Levine had by then been released, relief could yet be obtained through reduction of his three-year supervised release period. The court further ruled that as an attack on the place, manner and conditions of confinement (as distinguished from an attack on the lawfulness of his sentence), Levine’s petition was properly brought under 28 U.S.C. § 2241 rather than § 2255.
The court next held that his petition challenging the 2002 rule was moot because Levine had in fact been excluded only by the 2005 rule. His attack on the latter rule was that it ignored the statutory factors calling for discretionary individualized analysis by curtailing transfers to a CCC based solely on an arbitrary time limit. The district court held that the rule was a proper exercise of the BOP’s rulemaking authority and did not implicate ex post facto concerns.
On appeal, the Second Circuit concluded that the controlling statute provided the BOP “may” place a prisoner where it wishes, so long as it considers the factors of § 3621. When the BOP issued § 570.20(a) to circumscribe § 3621’s discretionary terms with a temporal bar, it placed an illegal absolute limitation on Levine’s right to be considered for earlier CCC placement. Because § 570.20(a) was thus inconsistent with § 3621, it was ruled an unlawful exercise of the BOP’s rulemaking authority.
The appellate court thus affirmed the district court’s dismissal of Levine’s petition challenging the 2002 rule, and vacated and remanded the lower court’s dismissal of his second petition related to the BOP’s 2005 policy. The Second Circuit declined to address Levine’s ex post facto argument. See: Levine v. Apker, 455 F.3d 71 (2nd Cir. 2006).
Elliot Levine, serving 15 months for bank fraud, sought habeas corpus relief from the Sentencing Act, 18 U.S.C. §§ 3621(b) and 3624(c), because the BOP had interpreted the Act so as to constrain the timing of his transfer to a CCC. Levine filed two writ petitions, one challenging the former BOP regulation (“2002 policy”) and the other taking on the BOP’s later 2005 variant. Whereas the 2002 policy appeared ambiguous as to when a prisoner might be eligible for preferential placement in a CCC, the revised 2005 policy removed all discretion from the remaining-time provision.
Levine’s complaint was that while the statute (§ 3621(b)) provided five factors guiding such discretionary placement, the BOP’s conflicting remaining-time provision (28 C.F.R. § 570.21(a)) unlawfully barred all discretionary consideration.
First, the court ruled that the controversy was not in excess of the court’s jurisdiction because although Levine had by then been released, relief could yet be obtained through reduction of his three-year supervised release period. The court further ruled that as an attack on the place, manner and conditions of confinement (as distinguished from an attack on the lawfulness of his sentence), Levine’s petition was properly brought under 28 U.S.C. § 2241 rather than § 2255.
The court next held that his petition challenging the 2002 rule was moot because Levine had in fact been excluded only by the 2005 rule. His attack on the latter rule was that it ignored the statutory factors calling for discretionary individualized analysis by curtailing transfers to a CCC based solely on an arbitrary time limit. The district court held that the rule was a proper exercise of the BOP’s rulemaking authority and did not implicate ex post facto concerns.
On appeal, the Second Circuit concluded that the controlling statute provided the BOP “may” place a prisoner where it wishes, so long as it considers the factors of § 3621. When the BOP issued § 570.20(a) to circumscribe § 3621’s discretionary terms with a temporal bar, it placed an illegal absolute limitation on Levine’s right to be considered for earlier CCC placement. Because § 570.20(a) was thus inconsistent with § 3621, it was ruled an unlawful exercise of the BOP’s rulemaking authority.
The appellate court thus affirmed the district court’s dismissal of Levine’s petition challenging the 2002 rule, and vacated and remanded the lower court’s dismissal of his second petition related to the BOP’s 2005 policy. The Second Circuit declined to address Levine’s ex post facto argument. See: Levine v. Apker, 455 F.3d 71 (2nd Cir. 2006).
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Related legal case
Levine v. Apker
| Year | 2006 |
|---|---|
| Cite | 455 F.3d 71 (2nd Cir. 2006) |
| Level | Court of Appeals |
| Injunction Status | N/A |