Rivera v. Clark, No. 4:2007cv02420 - Document 18 (N.D. Cal. 2008)

Court Description: ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS.. Signed by Judge Claudia Wilken on 2/5/08. (scc, COURT STAFF) (Filed on 2/5/2008)
Download PDF
Rivera v. Clark Doc. 18 Case 4:07-cv-02420-CW Document 18 Filed 02/05/2008 Page 1 of 13 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 United States District Court For the Northern District of California 10 11 12 13 No. C 07-2420 CW VERONICA RIVERA, Petitioner, ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS v. SCHELIA A. CLARK, Warden, Respondent. / 14 15 16 Petitioner Veronica Rivera brings this action seeking a writ 17 of habeas corpus under 28 U.S.C. § 2241. 18 Clark opposes the petition. 19 on the papers. 20 the parties, the Court grants the petition. The matter was taken under submission Having considered all of the papers submitted by 21 22 Respondent Schelia A. BACKGROUND Petitioner is currently serving a term of twenty-four months 23 of imprisonment on a conviction for conspiracy to commit honest 24 services mail fraud. 25 Camp in Dublin, California, where Respondent is warden. 26 this petition challenging a federal Bureau of Prisons (BOP) 27 regulation, 28 C.F.R. § 570.21, that denies inmates placement in a She is incarcerated at the Federal Prison She filed 28 Dockets.Justia.com Case 4:07-cv-02420-CW Filed 02/05/2008 Page 2 of 13 1 residential reentry center (RRC)1 until the last ten percent or six 2 months of their sentence, whichever is shorter. 3 that this policy is contrary to 18 U.S.C. § 3621(b), which governs 4 the placement of inmates in BOP custody. 5 United States District Court For the Northern District of California Document 18 Petitioner claims Pursuant to the challenged regulation, Petitioner has been 6 scheduled for transfer to an RRC on March 25, 2008, the beginning 7 of the last ten percent of her sentence. 8 BOP’s placement decision by filing a request for an administrative 9 remedy. Petitioner challenged the In this request, she argued that a consideration of the 10 factors set forth in § 3621(b) militates in favor of her transfer 11 to an RRC at the earliest possible date. 12 Petitioner’s request, stating, “Our procedures indicate that the 13 length of placement requested for a Residential Re-entry Center is 14 limited to the last 10 percent of the inmate’s term to be served or 15 six months, whichever is less.” 16 17 Office. The Regional Director denied the appeal, stating: Federal Regulation 28 CFR § 570.20 outlines the Bureau’s authority to designate inmates to community confinement. If eligible, the Bureau may designate inmates to community confinement during their last ten percent of the prison sentence being served, not to exceed six months. In addition, a review of your request was conducted without consideration of any time limitation, and the Unit Team determined that based on your ability to secure employment and reestablish family and community ties, a 60 day RRC placement was appropriate to assist with your prerelease needs. 19 20 21 22 23 25 Burke Decl. Ex. 1. Petitioner appealed Respondent’s decision to the BOP Regional 18 24 Respondent denied Id. Petitioner appealed this intermediate-level decision to the 26 27 28 1 RRCs are commonly known as halfway houses. The term, “community corrections center” (CCC) is also used by other courts to refer to the same type of institutional setting. 2 Case 4:07-cv-02420-CW 1 BOP’s Central Office. 2 stating: 3 5 6 7 8 9 10 Filed 02/05/2008 Page 3 of 13 The Central Office denied the appeal, Recommending [RRC] placement and the length involves the review of several factors, including an inmate’s current offense, institutional adjustment, individual needs, public safety, and existing community resources. Ordinarily, inmates with shorter sentences do not require maximum RRC placement due to reduced transition needs. . . . All available information in your case was reviewed and records indicate that you have been approved for RRC placement on March 25, 2008. We concur with this decision, find it appropriate, and in compliance with policy. 4 United States District Court For the Northern District of California Document 18 Id. Petitioner now challenges the BOP’s decision, seeking an order 11 requiring Respondent to consider her appropriateness for transfer 12 to an RRC in light of the factors set forth in 18 U.S.C. § 3621(b), 13 notwithstanding the time limits imposed by 28 C.F.R. § 570.21. 14 15 STANDARD OF REVIEW Under Chevron U.S.A., Inc. v. Natural Resources Defense 16 Council, Inc., 467 U.S. 837 (1984), a two-pronged framework exists 17 for judicial review of an administrative agency’s interpretation of 18 the statutes and regulations that it administers: 19 20 21 22 23 If congressional intent is clear, both the court and the agency must give effect to the unambiguously expressed intent of Congress. If, however, Congress has not directly addressed the exact issue in question, a reviewing court must defer to the agency’s construction of the statute so long as it is reasonable. In other words, unless an agency’s statutory interpretation is arbitrary, capricious, or manifestly contrary to the statute, the agency is accorded Chevron deference, and the court must adopt the agency’s view. 24 Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011-1012 (9th Cir. 25 2006) (internal quotation marks and citations omitted). 26 DISCUSSION 27 Title 18 U.S.C. § 3621(b) provides in relevant part: 28 3 Case 4:07-cv-02420-CW 1 2 3 Document 18 Filed 02/05/2008 Page 4 of 13 The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility . . . that the Bureau determines to be appropriate and suitable, considering-- 4 (1) the resources of the facility contemplated; 5 (2) the nature and circumstances of the offense; 6 (3) the history and characteristics of the prisoner; 7 (4) any statement by the court that imposed the sentence-- 8 9 (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or United States District Court For the Northern District of California 10 11 12 13 14 15 16 (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. . . . 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. 18 U.S.C. § 3621(b). 17 Section 3624(c), in turn, provides: 18 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. 19 20 21 22 23 18 U.S.C. § 3624(c). Prior to December, 2002, the BOP had a longstanding policy of 24 allowing inmates to spend the last six months of their 25 incarceration in an RRC, regardless of the portion of their 26 sentence this six-month period constituted. 27 F.3d 842, 844 (8th Cir. 2004). Elwood v. Jeter, 386 In December, 2002, however, the 28 4 Case 4:07-cv-02420-CW Filed 02/05/2008 Page 5 of 13 1 Department of Justice Office of Legal Counsel issued a memo opining 2 that § 3624(c) limits the BOP’s authority to place an inmate in an 3 RRC. 4 not exceed the lesser of ten percent of the total sentence or six 5 months. 6 Cir. 2004). 7 authority and changed its policy accordingly. 8 at 20. 9 United States District Court For the Northern District of California Document 18 The memo concluded that an inmate’s residence in an RRC may Id. at 844-45; Goldings v. Winn, 383 F.3d 17, 19-20 (1st The BOP adopted this interpretation of its statutory Goldings, 383 F.3d The new BOP policy was challenged in court, where it was 10 invalidated by the First and Eighth Circuits. 11 that § 3621(b) granted the BOP the discretion to transfer an inmate 12 to an RRC at any time during the inmate’s sentence, even prior to 13 the last six months or ten percent of the sentence. 14 F.3d at 28-29; Jeter, 386 F.3d at 847. 15 These courts held Goldings, 383 In response to these court decisions, in 2005, the BOP 16 promulgated regulations interpreting the above statutes. 17 so, the BOP stated that it was in engaging in what it characterized 18 as a “categorical exercise of [the] discretion” given to it by 19 § 3621(b). 20 impose an across-the-board limit on the time inmates may spend in 21 an RRC: 22 23 28 C.F.R. § 570.20(a). In doing It relied on this discretion to (a) The Bureau will designate inmates to community confinement only as part of pre-release custody and programming, during the last ten percent of the prison sentence being served, not to exceed six months. 24 25 26 27 (b) We may exceed these time-frames only when specific Bureau programs allow greater periods of community confinement, as provided by separate statutory authority (for example, residential substance abuse treatment program (18 U.S.C. 3621(e)(2)(A)), or shock incarceration program (18 U.S.C. 4046(c)). 28 5 Case 4:07-cv-02420-CW 1 United States District Court For the Northern District of California 2 Document 18 Filed 02/05/2008 Page 6 of 13 28 C.F.R. § 570.21. Petitioner claims that this regulation is contrary to 3 § 3621(b) because it does not provide for an individualized 4 evaluation of each inmate’s suitability for placement in an RRC 5 prior to the last ten percent or six months of his or her sentence. 6 Petitioner maintains that, rather than limiting the BOP’s 7 discretion to place inmates in an RRC prior to the last ten percent 8 of their sentence, § 3624(c) imposes minimum requirements on the 9 BOP with respect to RRC placements. Respondent counters that the 10 BOP regulation is a valid interpretation of § 3624(c) considered in 11 conjunction with § 3621(b), and thus should be accorded Chevron 12 deference. 13 The Ninth Circuit has not yet addressed the validity of 28 14 C.F.R. § 570.21. 15 have addressed the issue have held that the regulation is contrary 16 to the plain meaning of the statutes. 17 F.3d 1160 (10th Cir. 2007); Levine v. Apker, 455 F.3d 71 (2d Cir. 18 2006); Fults v. Sanders, 442 F.3d 1088 (8th Cir. 2006); Woodall v. 19 Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005). 20 agrees with these decisions and adopts their reasoning. 21 However, all four of the courts of appeals that Wedelstedt v. Wiley, 477 The Court Section 3621(b) gives the BOP wide discretion to assign an 22 inmate to any “appropriate and suitable” facility, but directs the 23 agency to consider five enumerated factors when making its 24 determination. 25 information that is particular to each inmate, the statute clearly 26 contemplates individualized placement determinations. 27 permits the BOP to transfer an inmate to any facility, including an Because several of these factors refer to 28 6 The statute Case 4:07-cv-02420-CW Filed 02/05/2008 Page 7 of 13 1 RRC or similar facility, “at any time,” provided that the five 2 factors support such a placement.2 3 United States District Court For the Northern District of California Document 18 Section 3624(c) places an additional duty on the BOP with 4 respect to inmate placements. 5 that, to the extent practicable, a reasonable portion of the last 6 ten percent of an inmate’s sentence is spent in a setting such as 7 an RRC. 8 commas and modifies only the phrase, “a reasonable portion.” 9 the BOP is not required by § 3624(c) to designate a period of RRC 10 placement exceeding six months, even if the last ten percent of an 11 inmate’s sentence is greater than six months. 12 statute defines six months as the upper boundary of the “reasonable 13 portion” requirement. 14 § 3624(c),] the BOP is required to place prisoners in conditions 15 that will afford them a reasonable opportunity to adjust to and 16 prepare for the prisoner’s re-entry into the community during a 17 reasonable part of the last ten percent of the prisoner’s term, to 18 the extent practicable. 19 six months of the prisoner’s sentence.”) (internal quotation marks 20 and brackets omitted). 21 It requires the agency to assure The qualifier, “not to exceed six months” is set off by Thus, Put another way, the Accord Elwood, 386 F.3d at 847 (“[Under This duty shall not extend beyond the last Fundamentally, § 3624(c) imposes a requirement on the BOP 22 independently of § 3621(b). 23 interpreted as limiting the BOP’s discretion under § 3621(b) to 24 place inmates in an RRC prior to the last ten percent of their 25 sentence. Nothing in § 3624(c) can be Accord Wedelstedt, 447 F.3d at 1166 (“Although § 3624(c) 26 27 28 2 See Levine, 455 F.3d at 80-82, and Woodall, 432 F.3d at 24546, for a more thorough analysis of the text of § 3621(b). 7 United States District Court For the Northern District of California Case 4:07-cv-02420-CW Document 18 Filed 02/05/2008 Page 8 of 13 1 surely imposes an affirmative obligation on the BOP, whenever 2 practicable, to place an inmate in a CCC or other form of community 3 confinement as the inmate’s release date nears, § 3624(c) has no 4 bearing on whether a CCC may be considered as a place of 5 imprisonment at some earlier point in a prisoner’s period of 6 incarceration.”); Woodall, 432 F.3d at 250 (“[Section] 3624 does 7 not determine when the BOP should consider CCC placement, but when 8 it must provide it.”); Elwood v. Jeter, 386 F.3d 842, 847 (8th Cir. 9 2004) (“Under § 3621(b), the BOP may place a prisoner in a CCC for 10 six months, or more. 11 of pre-release conditions. 12 home confinement, drug or alcohol treatment, or any other plan that 13 meets the obligation of a plan that addresses the prisoner’s 14 re-entry into the community.”) (emphasis added). 15 establishes a “floor,” not a “ceiling.” 16 incorrect in asserting that § 3624(c) “specifically states that a 17 prisoner should not spend more than the lesser of 10% of his 18 sentence or six months in a facility where he can re-enter the 19 community.” 20 support in the statute’s text, and therefore is not entitled to 21 Chevron deference. 22 Under § 3624(c) the BOP must formulate a plan This plan may include CCC placement, Resp.’s Br. at 7. Thus, § 3624(c) Respondent is simply This interpretation finds no Respondent argues that, even if § 3621(b) gives the BOP the 23 discretion to transfer inmates to an RRC prior to the last ten 24 percent of their sentence, the agency may categorically exercise 25 this discretion, considering RRC placement to be appropriate only 26 during the last ten percent of an inmate’s sentence. 27 C.F.R. §§ 570.20 and 570.21, Respondent argues, the BOP validly 28 8 In passing 28 United States District Court For the Northern District of California Case 4:07-cv-02420-CW Document 18 Filed 02/05/2008 Page 9 of 13 1 exercised this discretion. 2 placement is contrary to the clear language of § 3621(b), which 3 requires the BOP to conduct an individualized placement assessment 4 for each inmate. 5 consider specific enumerated factors, some of which are unique to 6 individual inmates. 7 considering these factors and the needs of a particular inmate, RRC 8 placement would not be appropriate until that inmate has served a 9 certain portion of his or her sentence. However, such an approach to inmate In making this assessment, the agency must The BOP is entitled to conclude that, However, it is contrary to 10 the directive of § 3621(b) for the BOP to make this decision 11 categorically, without regard to the circumstances of individual 12 inmates. 13 While the BOP may be able to make categorical rules to fill 14 gaps in the statutes it administers, it may not make such rules 15 when doing so would be inconsistent with congressional 16 instructions. 17 other words, the BOP “may not promulgate categorical rules that do 18 not take account of the categories that are made significant by 19 Congress.” 20 no regard to the factors set out in § 3621(b). 21 withdraws eligibility for RRC placement from inmates who have not 22 yet begun the last ten percent of their sentence, regardless of 23 whether the factors in § 3621(b) would support such a placement at 24 an earlier time. 25 exercise of the agency’s discretion. See Lopez v. Davis, 531 U.S. 230, 243-44 (2001). Levine, 455 F.3d at 85. Here, the BOP regulation pays Instead, it Accordingly, the regulation is not a valid 26 Respondent also argues that an RRC is not a “place of 27 imprisonment,” and thus is excluded from the scope of § 3621(b). 28 9 In Case 4:07-cv-02420-CW Filed 02/05/2008 Page 10 of 13 1 She bases this argument on United States v. Sullivan, 504 F.3d 969 2 (9th Cir. 2007). 3 1998 by a federal court to a term of eighteen months in prison 4 followed by three years of supervised release. 5 served this sentence concurrently with a separate sentence issued 6 by a Montana state court. 7 from a Montana state prison into a Montana state pre-release 8 center. 9 the defendant presumably had completed his federal term of 10 United States District Court For the Northern District of California Document 18 11 In that case, the defendant had been sentenced in The defendant In 2001, the defendant was transferred While the Sullivan decision is not clear on this point, imprisonment by the time he was transferred. The Ninth Circuit found that, for the purposes of crediting 12 time served toward the defendant’s sentence of federal supervised 13 release, he began serving this sentence when he was transferred to 14 the Montana pre-release center. 15 defendant’s time in the pre-release center did not qualify as 16 “imprisonment” under 18 U.S.C. § 3624(e), which relates to 17 supervised release and provides, “The term of supervised release 18 commences on the day the person is released from imprisonment.” 19 Id. at 972. 20 The court held that the Sullivan’s holding is limited to the set of facts at issue 21 there. 22 § 3624(e), § 3624(c) clearly contemplates that when an inmate is 23 transferred from a federal prison to a federal RRC, he or she 24 remains “imprisoned” in all respects relevant here -- the statute 25 provides that an inmate should spend a reasonable portion of the 26 last ten percent of his or her “term of imprisonment” in a setting 27 such as an RRC. Whatever the meaning of the term, “imprisonment” in If a particular inmate was sentenced to a term of 28 10 Case 4:07-cv-02420-CW Filed 02/05/2008 Page 11 of 13 1 supervised release in addition to a term of imprisonment, the term 2 of supervised release would commence after he or she was released 3 from the RRC. 4 an inmate began his or her term of supervised release upon transfer 5 to the RRC, the inmate would never complete his or her term of 6 imprisonment. 7 United States District Court For the Northern District of California Document 18 If Sullivan were to compel the conclusion that such Moreover, Sullivan focused on the fact that, while at the 8 Montana pre-release center, the defendant was not “not subject to 9 the control of the Bureau of Prisons.” Id. at 971. Here, in 10 contrast, the BOP would maintain control over Petitioner even after 11 she was transferred to an RRC; the agency could exercise its 12 discretion to transfer her back to a traditional prison setting at 13 any time, assuming it considered the factors in § 3621(b) prior to 14 making such a transfer. 15 official, has submitted a declaration that states, “Moving an 16 inmate to a RRC is no different than transferring an inmate from 17 one BOP location to another.” 18 to Respondent’s argument that transfers to an RRC are not 19 encompassed by § 3621(b). 20 Underlining this point, Kim Beakey, a BOP Beakey Dec. ¶ 6. This is contrary Finally, Respondent argues that the petition is moot because 21 the BOP Regional Director reviewed Petitioner’s request for RRC 22 placement “without consideration of any time limitation.” 23 Nonetheless, it is clear that the initial decision to limit 24 Petitioner’s placement in an RRC to sixty days was based on the 25 restrictions imposed by the challenged regulation. 26 this decision, the Regional Director expressed his view that the 27 length of Petitioner’s RRC term was limited by the regulation. 28 11 In affirming In Case 4:07-cv-02420-CW Filed 02/05/2008 Page 12 of 13 1 addition, contrary to the Regional Director’s assertion, there is 2 no evidence that Petitioner’s unit team, which issued the original 3 RRC recommendation, considered Petitioner’s “ability to secure 4 employment and reestablish family and community ties” when making 5 its decision. 6 review of Petitioner’s placement decision contain any substantive 7 discussion of the factors specified in § 3621(b). 8 Court cannot conclude that the BOP’s placement decision would 9 remain undisturbed if the agency did not consider itself bound by 10 United States District Court For the Northern District of California Document 18 See Beakey Decl. Ex. 3. Nor does the administrative Accordingly, the the ten-percent limitation, and the petition thus is not moot. 11 CONCLUSION 12 For the foregoing reasons, the Court GRANTS Petitioner’s 13 petition for a writ of habeas corpus. 14 the appropriateness of placing Petitioner in an RRC during any 15 portion of the remainder of her sentence, without regard for the 16 ten-percent time limit imposed by 18 C.F.R. § 570.21. 17 her decision, Respondent shall take into account Petitioner’s 18 particularized pre-release needs and the factors set forth in 19 § 3621(b). 20 order. 21 party shall bear her own costs. 22 Respondent shall consider When making The decision shall issue within fourteen days of this The clerk shall enter judgment and close the file. Each IT IS SO ORDERED. 23 24 Dated: 2/5/08 CLAUDIA WILKEN United States District Judge 25 26 27 28 12 Case 4:07-cv-02420-CW 1 Document 18 Filed 02/05/2008 Page 13 of 13 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 RIVERA et al, Case Number: CV07-02420 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 CLARK et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 5, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 15 16 17 18 19 20 21 Dennis Matthew Wong U.S. Attorney’s Office 450 Golden Gate Avenue San Francisco, CA 94102 Veronica Rivera 97659-011 Federal Prison Camp, Dublin 5675 8th Street Camp Parks Dublin, CA 94568 Dated: February 5, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk 22 23 24 25 26 27 28 13