Opinion
No. 05 Civ. 4523 (LAK).
October 27, 2005
ORDER
This is a petition for a writ of habeas corpus challenging the Bureau of Prisons' February 14, 2005 amendment to 28 C.F.R. § 570.21, the rule governing the designation of inmates to community corrections facilities. Petitioner seeks also to require respondent to consider transferring him to such a facility without regard to that rule. The action has been stayed pending the Second Circuit's decision in Levine v. Menifee, No. 05-2590-pr, which presents the question raised by the petition.
Petitioner now has filed what he calls an addendum to his petition in which he claims that he has been told that he will be transferred to Pharos House, a halfway house in Portland, Maine, on January 3, 2006 and that this would be an inappropriate designation because he is a disabled amputee and the facility is not handicapped accessible. He seeks a direction that the Bureau of Prisons place him in home confinement.
The Bureau of Prisons has an Administrative Remedy Program that appears to afford petitioner an opportunity to raise his grievance within the Bureau. 28 C.F.R. Part 542. The addendum to the petition does not allege that petitioner lacks or has exhausted an administrative remedy. This alone is fatal to the addendum. Moreover, the designation of inmates to specific facilities is exclusively within the discretion of the Bureau. United States v. Williams, 65 F.3d 301, 307 (2d Cir. 1995); 18 U.S.C. § 3621(b). It would be inappropriate at this stage to determine whether, and in what context, judicial review of such a designation might be available.
Accordingly, petitioner's present application is denied. To the extent this might be viewed as an independent petition for relief under 28 U.S.C. § 2241, a certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).
SO ORDERED.