MEMORANDUM AND ORDER

RICHARD D. ROGERS, United States District Judge

This case is now before the court upon defendant's motion to vacate sentence pursuant to 28 U.S.C. § 2255, defendant's motion to stay his redesignation to a prison facility, and defendant's motion for an emergency hearing.

The following facts are taken largely from defendant's motion to vacate and request for emergency hearing. On July 31, 2000 defendant pleaded guilty to a bank fraud charge. On January 2, 2001 defendant was sentenced to a term of one year and one day. The court recommended that defendant serve his sentence in the Geary County jail or any other work release facility near defendant's home and that defendant engage in work release. Defendant was allowed to remain on bond pending appeal. After the appeals process was exhausted, defendant surrendered to begin his sentence on July 25, 2002. He was designated to a halfway house in Wichita. With this designation, defendant has been able to continue in his business of raising cattle.

On December 23, 2002 defendant was notified that he would be redesignated by the Bureau of Prisons to a prison or jail institution within the next 45 days, but not sooner than 30 days from the receipt of the notice. According to the notice:

Your transfer results from a Bureau [of Prisons] procedure change, which complies with recent guidance from the U.S. Department of Justice's Office of Legal Counsel (OLC) finding that the term "community confinement" is not synonymous with "imprisonment." OLC has determined that the Bureau's practice of using CCCs ["community confinement centers"] as a substitute for imprisonment contravenes well-established caselaw and is inconsistent with U.S.S.G. § 5C1.1. Instead, the Bureau's CCC placement authority is limited in duration to the last 10% of the prison sentence, not to exceed six months, pursuant to 18 U.S.C. § 3624(c).

This procedure change is being implemented prospectively, with the following exception. Inmates directly designated to CCCs who, as of December 16, 2002, had more than 150 days remaining to serve on their prison terms, will be re-designated by the Bureau to prison institutions. Because you fall into this group, you will be re-designated to a prison institution within the next 30 days in compliance with the procedure change. After returning to a prison institution, you will be reviewed for pre-release CCC placement consistent with this revised procedure.

If you are dissatisfied with this decision, you may challenge it through the Bureau's administrative remedy program.

At the time defendant received this notice, he had more than 150 days remaining to serve on his sentence. According to defendant's motion, he now has less than 150 days remaining to serve on his sentence. The court is unclear as to the date from which the 150 days is counted. But, for the purposes of this order, the court shall accept defendant's representations.

According to defendant's motion, his placement in a prison facility would be a significant hardship.

[Defendant] maintains a large cattle and farming operation and it would be very difficult for him to simply enter a prison facility within the time frame proposed by the Bureau of Prisons memorandum. Mr. Schild has no one capable of taking over care of the livestock and it would take considerable time for this operation to be dismantled such that no care of the livestock or other maintenance of the operation was necessary. Further, [defendant] would be left with no employment to return to when he is released in May 2003 and it would be nearly impossible to resume this operation. The cattle that Mr. Schild manages are not feedlot and therefore easy to dispose of at the sale barn for a fair price. Rather, these are production cattle of a high grade and [it] would require considerable time to arrange private sale in order to receive a fair price for the owners. This also illustrates why it would be impossible to simply return to work as assembling this caliber of livestock would take time and considerable expense. Without gainful employment, Mr. Schild would not be able to continue his efforts at making restitution.

Defendant makes two legal arguments for relief. First, he contends that his sentence was based upon the material misinformation that he would be eligible for placement in a halfway house or work release facility. Second, he contends that the redesignation violates the constitutional protection against ex post facto punishment. Because the first argument does not have merit in our opinion, and because the second argument is not properly couched as an argument for relief under § 2255 and probably does not have merit, the court shall deny defendant the relief he requests in this matter.

Material misinformation

The Tenth Circuit discussed the law in this area in U.S. v. Blackwell, 127 F.3d 947, 954 (10th Cir. 1997):

Grounds for successful collateral attacks are limited far beyond errors justifying reversal on direct appeal; "the remedy . . . does not encompass all claimed errors in conviction and sentencing." [United States v.] Addonizio, 442 U.S. at 184, 99 S.Ct. at 2240. "[A]n error of law [or fact] does not provide a basis for collateral attack unless the claimed error constituted `a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. at 185, 99 S.Ct. at 2240 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). Accordingly, misinformation alone cannot constitute a fundamental defect. Only "misin-formation of constitutional magnitude" is cognizable under § 2255. See id. at 187, 99 S.Ct. at 2241; United States v. Sunrhodes, 831 F.2d 1537, 1542 (10th Cir. 1987).

We do not believe "misinformation of a constitutional magnitude" was involved in this matter for the following reasons.

First, at the time the court sentenced defendant he was eligible for work release placement as the law and regulations were then construed by the Bureau of Prisons. Therefore, the court was not operating upon misinformation at the time of sentencing and, consequently, defendant's due process right to be sentenced on the basis of accurate information was not violated.

Second, even if the court had known that defendant would not qualify for work release, the court would have issued the same sentence. In other words, the alleged "misinformation" was not "material." The court rejected defendant's arguments for a downward departure and sentenced defendant to the bottom of the guideline range. The court listened to defendant's arguments and was thoroughly aware of his status as a farmer and cattleman. The court would not have modified our sentence had we known that defendant would have to serve the sentence in a prison facility because there were no good grounds to do so in the court's opinion. Finally, the Bureau of Prisons has always had the discretion to reject the court's recommendation and place defendant in a prison facility. The Bureau was never obliged to place defendant in a halfway house despite the court's recommendation. The court was aware of this at the time defendant was sentenced. The Bureau's later decision to stray from the court's recommendation in this case, therefore, cannot be considered "material misin-formation" of a constitutional magnitude. See Klawonn v. United States, 2001 Wl 669832 (6th Cir. 2001) (frustration of court's subjective intent in recommending work release does not justify § 2255 relief).

Ex post facto

Defendant contends that the redesignation to a prison facility constitutes an increase in punishment in violation of the ex post facto clause of the Constitution. Initially, we reject this argument as improperly made in a § 2255 petition. This challenge does not contend that the sentence, when rendered, was illegal and should be vacated. Rather, it is a challenge to an anticipated change in the conditions of defendant's confinement. As such it should be made in a Bivens action. Boyce v. Ashcroft, 251 F.3d 911, 918 (10th Cir.) vacated as moot, 268 F.3d 953 (2001).

However, if the court were forced to decide the issue, the court would likely reject defendant's ex post facto claim. The ex post facto clause of the Constitution prohibits laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts." Lee v. Governor of State of New York, 87 F.3d 55, 59 (2nd Cir. 1996) (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)). Courts which have considered this or similar matters have remarked that "there is no clear test for whether a measure constitutes an increase in punishment" for purposes of the ex post facto clause. Id. Reference is often made to California Dep't of Corrections v. Morales, 514 U.S. 499 (1995), where the Court stated: "the question of what legislative adjustments `will be held to be of sufficient moment to transgress the Constitutional prohibition' must be a matter of `degree.'" 514 U.S. at 509 (quoting Beazell v. Ohio, 269 U.S. 167, 171 (1925)).

In this case defendant's length of sentence is not changed by the redesignation of his place of confinement; rather his conditions of confinement are changed, admittedly to defendant's significant disadvantage. But, this kind of change was possible prior to the modification in the Bureau's interpretation of the law, and it continues to be possible under a variety of circumstances. It probably lacks constitutional significance for purposes of the ex post facto clause. Lee, 87 F.3d at 59-60 (executive order and amendment making prisoner ineligible for work release program does not violate ex post facto clause); Dominique v. Weld, 73 F.3d 1156, 1162-63 (1st Cir. 1996) (loss of work release privileges by regulation denying privileges to certain sex offenders does not violate ex post facto clause); Bennett v. District of Columbia Department of Corrections, 1995 WL 601049 (D.D.C. 1995) (removal from work release program because of changed eligibility requirements does not violate ex post facto clause); but cf., In re Medley, 134 U.S. 160, 167 (1890) (ex post facto violation where new statute requires solitary confinement for prisoner prior to execution).

We believe the same authority is persuasive against any claim that defendant had a due process right to placement in a work release setting.

Conclusion

In conclusion, for the above-stated reasons the court shall dismiss defendant's § 2255 petition and deny defendant's motion for stay and request for emergency hearing. The court is not unconcerned with the fate of the cattle in defendant's care. We agree that it would be immoral to allow cattle go without proper care and feeding. But, the court is convinced that defendant bears the fault if this happens. He has had thirty days to make alternative arrangements. Common sense suggests that alternative arrangements are possible.

IT IS SO ORDERED.