Opinion
06 Civ. 3113 (GBD) (AJP).
August 3, 2006
REPORT AND RECOMMENDATION
To the Honorable George B. Daniels, United States District Judge:
Pro se petitioner Sohail Mallik Saleem, currently incarcerated in the Metropolitan Correctional Center ("MCC"), brought this § 2241 habeas corpus petition challenging the validity of the Bureau of Prison's ("BOP") February 2005 Rule, codified as 28 C.F.R. §§ 570.20-.21, limiting placement in a Community Corrections Center ("CCC") to the final 10% of his sentence. (Dkt. No. 1: Pet.)
On July 10, 2006 the Second Circuit struck down the BOP's February 2005 Rule in Levine v. Apker, No. 05-2590, ___ F.3d ___, 2006 WL 1901020 at *13 (2d Cir. July 10, 2006). The Government called the Court's attention to Levine (see 7/28/06 A.U.S.A. Feldman Letter) and, at the Court's invitation, presented its view as to Levine's effect on this case by letter dated August 2, 2006. (8/2/06 A.U.S.A. Feldman Letter). Attached to the August 2 letter is the declaration of Adam M. Johnson, a BOP staff attorney at the MCC. The Government's letter and the attached Johnson declaration unequivocally state that, "[i]n light of Levine, the BOP will not apply the February 2005 Regulation in determining Petitioner's CCC placement. Rather, the BOP will act according to BOP Program Statement No. 7310.04, Community Correction Center (CCC) Utilization and Transfer Procedure (1998)." (8/2/06 A.U.S.A. Feldman Letter Att.: Johnson Aff ¶ 5.) BOP Program Statement No. 7310.04 was the rule in place before the BOP December 2002 Rule and the now-invalid February 2005 Rule limiting CCC placement to no more than 10% of the sentence. See Levine v. Apker, 2006 WL 1901020 at *2. Pursuant to BOP Program Statement 7310.04, an inmate may be placed in a CCC for "more than the 'last ten per centum of the term,' or more than six months, if appropriate." (BOP Program Statement 7310.04, § 5 at p. 4.) The BOP thus has given Saleem the relief for which he petitioned, rendering Saleem's § 2241 habeas petition moot.
The Johnson Declaration further provides: "Pursuant to BOP Program Statement No. 7310.04, the BOP will not categorically limit Petitioner to the final ten percent of his sentence." (Johnson Aff. ¶ 6, citing quoting BOP Program Statement No. 7310.04.) BOP Program Statement No. 7310.04 is Exhibit A to Johnson's Declaration.
While the Government could petition the Supreme Court for certiorari in Levine, Levine is the governing law in this Circuit and the BOP also has unequivocally represented to the Court that it will review Saleem's placement in a CCC pursuant to BOP Program Statement No. 7310.04. (8/2/06 A.U.S.A. Feldman Letter at 1.)
CONCLUSION
For the reasons set forth above, having received the relief he seeks via the Levine decision and the Government's representation to the Court, Saleem's § 2241 petition should be dismissed as moot.FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, 500 Pearl Street, Room 630, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Daniels (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal.Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994);Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v.Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v.Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v.Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).