Opinion
05 Civ. 3966 (SHS).
May 3, 2007
MEMORANDUM OPINION ORDER
Petitioner Jonathan Cylear filed a petition for relief pursuant to 28 U.S.C. § 2241 on April 20, 2005, and supplemented that petition to raise an additional claim for relief on November 3, 2005. Because Cylear's first claim for relief is moot and his second theory of relief has been squarely rejected by the U.S. Court of Appeals for the Second Circuit, Cylear's petition is dismissed.
I. The Initial Petition
In the initial petition, Cylear challenges the Federal Bureau of Prisons (the "BOP") practice of referring to 28 C.F.R. § 570.21(a) in making Community Corrections Center ("CCC") placement decisions. Cylear seeks an order from this Court requiring the BOP to promptly consider transferring him to a CCC pursuant to 18 U.S.C. § 3621(b), but without reference to section 570.21(a). After Cylear filed this petition, the Second Circuit declared 28 C.F.R. § 570.21(a) invalid in Levine v. Apker, 455 F.3d 71 (2d Cir. 2006). In light of Levine, the BOP reverted to its pre-2002 policy for making CCC designations, pursuant to which the BOP reviews inmates for CCC placement in accordance with the guidelines set forth by Federal Bureau of Prisons Program Statement 7310.04 (Dec. 16, 1998). That document makes clear that "[p]reliminary decisions regarding eligibility for CC Programs are to be made well in advance of the last year of confinement." BOP Program Statement 7310.04 at 7. In addition, "[a] final and specific release preparation plan, including a decision as to CCC referral, is normally established at a team meeting no later than 11 to 13 months before an inmate's projected release date." Id. Cylear's projected release date is February 18, 2008.
The government wrote to the Court on April 25, 2007 to inform it that pursuant to Levine and BOP Program Statement 7310.04, the BOP reviewed Cylear — without reference to the ten percent limitation in 28 C.F.R. § 570.21(a) — for placement in a Residential Re-entry Center ("RRC"). (Letter to the Court from Joseph A. Pantoja dated Apr. 25, 2007.) A revised placement recommendation for Cylear issued on January 17, 2007, recommending a five to six month RRC placement at the end of his sentence. (Id.) Although the RRC placement designation has not yet been finalized, Cylear has nonetheless received the relief sought in his initial petition — consideration by the BOP for placement in a community facility without reference to 28 C.F.R. § 570.21(a). Accordingly, the initial claim raised by Cylear must be dismissed as moot.
The government informs the Court that CCCs have been restyled as RRCs by the BOP.
II. The Supplement to the Petition
In the supplement to his petition, Cylear raises a different claim. Here, Cylear asserts that the good conduct time credited to his sentence pursuant to 18 U.S.C. § 3624(b) should be calculated proportionately to the sentence imposed, rather than to the time actually served. The BOP interprets 18 U.S.C. § 3624(b) to mean that an inmate may earn 54 days of good time credit toward service of his sentence for each year that he actually serves. See 28 C.F.R. § 523.20(a). Shortly before Cylear filed the supplement to his petition, the Second Circuit addressed this issue. In Sash v. Zenk, 428 F.3d 132 (2d. Cir 2005), this Circuit joined the majority of other circuits in holding that the BOP's interpretation of section 3624(b) is entitled to deference pursuant to Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). 428 F.3d at 136-37. Accordingly, the claim raised by Cylear in the supplement to his petition must be denied.
III. Conclusion
For the reasons set forth above, the petition is dismissed. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; Middleton v. Attorneys Gen. of New York and Pennsylvania, 396 F.3d 207 (2d Cir. 2005) (per curiam);Ludicore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). Finally, pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).