The opinion
Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-16-2005
Miller v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1654
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1654
DAVID MILLER
Appellant
v.
FEDERAL BUREAU OF PRISONS; HARLEY G. LAPPIN, in
his official capacity as director of the Federal Bureau of Prisons;
WARDEN JOHN NASH, in his official capacity as warden of
Federal Correctional Institution-Fort Dix, New Jersey
On Appeal from the United States District Court
For the District of New Jersey
(D.C. No. 1:04-cv-06286)
District Judge: Honorable Freda L. Wolfson
Submitted Under Third Circuit L.A.R. 34.1(a)
June 14, 2005
No. 05-1083
STEVEN SICHEL
Appellant
v.
HARLEY G. LAPPIN, in his official capacity as director of the
Federal Bureau of Prisons; WARDEN JOHN NASH, in his
official capacity as warden of Federal Correctional Institution;
THE FEDERAL BUREAU OF PRISONS
On Appeal from the United States District Court
For the District of New Jersey
(D.C. No. 04-cv-05271)
District Judge: Honorable Freda L. Wolfson
Submitted Under Third Circuit L.A.R. 34.1(a)
June 14, 2005
Before: ALITO, SMITH, and BECKER, Circuit Judges
(Filed: September 16, 2005)
OPINION
BECKER, Circuit Judge.
David Miller appeals from an order of the District Court denying
his petition for a Writ of Habeas Corpus. In his pro se petition, Miller
challenges the legality of a 2002 Bureau of Prison (“BOP”) policy
change that limited the time a prisoner may be placed in a Community
Corrections Center (“CCC”) to the lesser of six months or ten percent of
the prisoner’s total sentence.1 This appeal presents the question whether
the BOP’s CCC placement policy is consistent with its statutory grant of
1In light of Steven Sichel’s recent release from incarceration, his
appeal, docketed at No. 05-1083, is moot.
2
authority. Because we hold that the policy is contrary to the plain
language of 18 U.S.C. § 3624(c), we will vacate the order of the District
Court denying Miller’s petition and remand for further proceedings
consistent with this opinion.
I. Facts and Procedural History
Miller is incarcerated at the Federal Correctional Institution at
Fort Dix, New Jersey, serving a 13-month sentence imposed by the
District Court for the Eastern District of Pennsylvania. On December 13,
2004, Miller was notified by the BOP that his projected release date was
October 24, 2005. He was also informed that he would be eligible for
pre-release placement at a CCC on September 23, 2005. He would
therefore spend approximately one month, or not quite ten percent of his
total sentence, at a CCC. Given the BOP’s previous practice of placing
certain offenders in CCCs for six months or longer, Miller requested
such placement for the last six months of his sentence. He claims that he
received no response to his request.
Miller then challenged the BOP’s placement decision by filing
a petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, in
the District Court for the District of New Jersey, where he was
incarcerated. Miller claimed that the new BOP policy limiting his time
in a CCC to the lesser of six months or ten percent of his sentence was
based on an erroneous interpretation of two statutory provisions of the
3
Sentencing Reform Act of 1984 – 18 U.S.C. §§ 3621(b) and 3624(c).
The District Court summarily denied the petition without requesting an
answer from the Government, finding that the BOP “did not violate
federal law by limiting [Miller’s] eligibility for transitional placement.”
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).
We exercise plenary review over the District Court’s legal conclusions
and apply a clearly erroneous standard to its findings of fact. See
Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002).2
2The Government contends that the District Court lacked
jurisdiction to consider Miller’s § 2241 petition because Miller is
contesting the “conditions of [his] confinement” rather than the fact or
duration of his sentence. Therefore, it claims, habeas corpus does not lie.
(Appellee’s Br. at 1.) While resolution of this issue is far from clear, we
are satisfied, if barely, that Miller presents a proper habeas claim.
The Government relies primarily on Leamer v. Fauver, 288 F.3d
532 (3d. Cir. 2002), and related cases for the proposition that jurisdiction
here is not proper. Leamer concluded that § 1983 relief is unavailable
“whenever the challenge ultimately attacks the ‘core of habeas’ – the
validity of the continued conviction or the fact or length of a sentence.”
Id. at 542. However, Leamer focuses on whether a prisoner has the
option of bringing a civil rights action as opposed to a habeas petition.
It does not conclusively determine when a prisoner is precluded from
filing a habeas petition. Moreover, Leamer acknowledges that there are
cases at the intersection of § 1983 and habeas. Id. at 543-44.
In contrast, we have held that § 2241 allows a federal prisoner to
challenge the “execution” of his sentence in habeas. See United States
v. Eakman, 378 F.3d 294 (3d Cir. 2004); Coady v. Vaughn, 251 F.3d
480, 485 (3d. Cir. 2001). In Coady, we observed that § 2255 is limited
to challenges to the validity of a sentence while § 2241 is the only statute
conferring habeas jurisdiction to “hear the petition of a federal prisoner
who is challenging not the validity but the execution of his sentence.”
251 F.3d at 485. We added that “we are not unmindful of the cases
which hold that federal prisoners challenging some aspect of the
execution of their sentence, such as denial of parole, may proceed under
Section 2241.” Id. Other circuits have also held that prisoners
4
II. Bureau of Prison Policy and the Relevant Statutory Provisions
Before the policy change that is the subject of this dispute, the
BOP generally considered prisoners for CCC placement for up to six
months at the end of their sentences, regardless of the total sentence
length. “These practices were entirely routine, and were all but taken for
granted by all participants: the BOP, the Probation Office, the U.S.
Attorney’s Office, the defense bar, and the judiciary.” United States v.
Serpa, 251 F.Supp. 2d 988, 990 (D. Mass. 2003) (citation omitted).
However, on December 13, 2002, the Department of Justice Office of
Legal Counsel
(“OLC”) issued a memorandum that concluded that the BOP’s
challenging the location and manner of their detention may proceed
under § 2241. See Adams v. United States, 372 F.3d 132, 135 (2d Cir.
2004) (“In a § 2241 petition a prisoner may seek relief from such things
as . . . the administration of his parole, computation of his sentence by
parole officials, disciplinary actions taken against him, the type of
detention, and prison conditions in the facility where he is
incarcerated.”) (emphasis added); Hernandez v. Campbell, 204 F.3d
861, 864-65 (9th Cir. 2000) (“Generally, motions to contest the legality
of a sentence must be filed under § 2255 . . . while petitions that
challenge the manner, location, or conditions of a sentence's execution
must be brought pursuant to § 2241 . . . .”) (emphasis added). In a case
with facts similar to those presented by Miller, the Sixth Circuit held that
a challenge to a prisoner’s “place of imprisonment” was proper under §
2241, not §2255, because it questioned the way the “sentence was being
executed.” United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991).
The caselaw is opaque as to the precise meaning of “execution
of sentence.” Given the procedural posture of this case – Miller is about
to be released – we do not have the luxury of explaining in depth its
meaning here. In light of Coady, Eakman, Admans, Hernandez, and
Jalili, we are satisfied that what is challenged here is the execution of
Miller’s sentence. Hence, we find habeas corpus jurisdiction proper.
5
longstanding practice of placing certain prisoners in CCCs for all or long
parts of their sentences was contrary to the BOP’s statutory grant of
authority and that such placements should be limited to a maximum of
ten percent of an offender’s sentence, to be capped at six months.3 On
December 20, 2002, the BOP followed the OLC’s advice and
memorialized it.4
This appeal turns on the interpretation of two statutes. The BOP
is vested with authority under 18 U.S.C. § 3621(b) to determine the
location of an inmate’s imprisonment:
(b) Place of imprisonment. The Bureau of Prisons shall
designate the place of the prisoner’s imprisonment. The
Bureau may designate any available penal or correctional
facility that meets minimum standards of health and
habitability established by the Bureau . . . that the Bureau
determines to be appropriate and suitable . . . . 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.
A more specific provision, 18 U.S.C. § 3624(c), describes the BOP’s
obligation to prepare prisoners for community re-entry by, for example,
3The 2002 OLC memo considered all community confinement
facilities – including community confinement centers and halfway
houses – as indistinguishable for purposes of this question. We accept
that understanding here.
4We note our awareness that the BOP has recently revised its
regulations governing CCC placement. Because those regulations
became effective February 14, 2005, after Sichel and Miller’s CCC
determinations were made, they do not govern here, and we express no
opinion about them.
6
placing them in a CCC:
(c) Pre-release custody. 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.
The 2002 memo, which was adopted by the BOP, concluded that
the BOP did not have “general authority” under § 3621 to place an
offender in community confinement from the outset of his sentence or
at any time the BOP chooses. Instead, the memo reasoned that authority
to transfer a prisoner to a CCC is derived solely from § 3624, which
limits residence in a CCC to the lesser of 10 percent of the total sentence
or six months.
In denying Miller’s petition challenging the BOP policy, the
District Court found that the BOP did indeed have discretion under §
3621(b) to place a prisoner in a CCC at any time. However, the Court
further ruled that § 3624(c) limits that discretion to the last ten percent
of the sentence, not to exceed six months. It upheld the BOP’s
interpretation of § 3624(c) – and therefore Miller’s pre-release date – as
a “permissible construction of the statute.”
III. Discussion
At issue in this appeal is whether the District Court was correct
7
in endorsing the BOP’s interpretation. Specifically, we must decide
whether the BOP may, under § 3624(c), transfer an inmate to a CCC
prior to the last ten percent or six months of his total sentence. While we
have acknowledged the BOP’s interpretation, see United States v.
Eakman, 378 F.3d 294, 301 (3d Cir. 2004), we have not yet considered
its validity in a precedential opinion.
Both courts of appeals to address the question have rejected the
BOP’s interpretation as inconsistent with the relevant statutory
provisions. See Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004); Goldings
v. Winn, 383 F.3d 17 (1st Cir. 2004). In Elwood, the new BOP policy
limited a prisoner’s placement in a CCC to the last four months of his
sentence. Under the old policy, he would have been eligible for a full six
months. The Eighth Circuit rejected the BOP’s new interpretation,
holding that § 3624(c) was a specific mandate that did not interfere with
the BOP’s general discretion to place Elwood in a CCC. See Elwood,
386 F.3d at 847. Similarly, the First Circuit held that the BOP’s
discretionary authority was not subject to the temporal limitations of §
3624(c). See Goldings, 383 F.3d at 29.5
5Miller requested that he be placed in a CCC for a total of six
months. He does not argue that the BOP should have considered a
placement of more than six months. We note, however, that the Eighth
and First Circuits held that the BOP has discretion to transfer a prisoner
to a CCC at “any time” during incarceration. Elwood, 386 F.3d at 847;
Goldings, 383 F.3d at 28.
8
In the view of both the First and Eighth Circuits, the time
constraints of § 3624(c) limit only the affirmative obligation of the BOP,
not the agency’s discretion to place a prisoner in a CCC for a longer
period of time. Miller of course cites Elwood and Goldings for the
proposition that the BOP may transfer prisoners to CCCs at any time
during their incarceration. In contrast, the Government argues that the
current BOP policy is a correct interpretation of the two statutes.
Although it concedes that the BOP has discretion under § 3621(b) to
place an inmate in a CCC at any time during a sentence (Appellee’s Br.
at 20), it interprets § 3624(c) as a limit on the BOP’s general authority:
[O]ne computes the 10% of the term of imprisonment,
but no matter how long that 10% period, the statute caps
pre-release custody at six months. Therefore, prisoners
serving long sentences may not exceed the six months for
pre-release custody. Prisoners with shorter sentences, like
petitioners here, would be limited by the 10%
calculation.
(Appellee’s Br. at 22)
We agree with Miller’s interpretation and that of the First and
Eighth Circuits. Section 3621 requires the BOP to designate the location
of a prisoner’s incarceration. It gives the BOP discretion to choose a
“place of imprisonment” from among “any available penal or
correctional facility” that meets applicable standards. No type of facility
is expressly excluded. We believe that if Congress had intended to
exclude CCC placement, it would not have delegated full authority to
9
place a prisoner in any available facility. Because both parties here
concede that a CCC may be a “place of imprisonment,” we assume that
transfer to a CCC is within the BOP’s broad powers under § 3621(b).
The remaining question is whether the language of § 3624(c) to
determine if that statute specifically limits the BOP’s discretion to place
prisoners in a CCC.
The plain language of § 3624(c) mandates that the BOP “shall”
assure that a prisoner is considered for appropriate pre-release focused
on re-entry. The use of the word “shall” indicates that the statute is
concerned not with constraining the BOP’s placement discretion, but
with imposing an affirmative obligation on the BOP. The Supreme Court
has articulated the mandatory nature of the word “shall.” See Forest
Guardians v. Babbitt, 174 F.3d 1178, 1187 (10th Cir. 1999) (“The
Supreme Court . . . [has] made clear that when a statute uses the word
‘shall,’ Congress has imposed a mandatory duty . . . .”). Recently, the
Court noted the obvious distinction in § 3621 between the use of “may,”
which is permissive, and the use of “shall,” which creates
“discretionless obligations.” Lopez v. Davis, 531 U.S. 230, 240-41 (U.S.
2001).
The discretionless obligation imposed by § 3624(c) here reflects
Congress’ desire to ensure that prisoners are given ample time to readjust
to community living before they are fully released. Serving as an
10
alternative to traditional parole, CCCs provide an important
“transitional period.” Bailor v. Salvation Army, 854 F. Supp. 1341, 1364
(N.D. Ind. 1994). While § 3621(b) allows the BOP to consider ordering
a CCC transfer, only § 3624(c) ensures that such a transfer, when
appropriate, will actually take place. Thus, the time constraints in §
3624(c) limit only the obligation of the BOP to consider placing
prisoners in CCCs or similar facilities. They do not limit the agency’s
discretion to place prisoners in such facilities for longer periods of time.
Using this reasoning, the two statutes at issue are easily harmonized.6
V. The Remedy
Summarizing, we hold that under §§ 3621(b) and 3624(c), the
BOP has the discretion to transfer an inmate to a CCC or like facility for
more than ten percent of his sentence, but must, if practicable, transfer
an inmate for a reasonable part of the last ten percent of the sentence, not
to exceed six months. The BOP’s discretion under § 3621(b) is not
subject to the temporal limitations of the BOP’s mandate in § 3624(c).
We will therefore vacate the order of the District Court and remand for
further proceedings consistent with this opinion.
6As the First and Eighth Circuits point out, the BOP’s obligation
under § 3624(c) is qualified. Elwood, 386 F.3d at 846; Goldings, 383
F.3d at 23. The BOP must assure that a prisoner spends the final portion
of his sentence under applicable pre-release conditions only to the extent
“practicable.” We have no occasion here to construe the import of this
provision.
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However, as noted above, Miller is scheduled to be released
shortly, which likely will, if the release transpires, moot the case.
Accordingly, we will order that the mandate shall issue forthwith and
immediately be transmitted to the District Court and to the parties. It
seems unlikely that the District Court will be able to convene a hearing,
much less take judicial action, before Miller’s release date. That is
unfortunate but was, in terms of granting meaningful relief to Miller,
inevitable. Because of the short sentence, the necessity of securing the
views of the Government (the District Court disposed of the case without
soliciting the views of the Government), and the time necessary to study
and opine on these complicated issues, the likelihood of Miller getting
an earlier transfer to a CCC was always minimal. Perhaps this opinion,
albeit styled as non-precedential, will be of value to other panels
considering this oft-recurring question.
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