Opinion
No. 04-CV-3713 (NGG).
December 10, 2004
MEMORANDUM ORDER
Pro se petitioner Nicholas Muniz brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking an order than he is eligible for a transfer to a community confinement center ("CCC") in accordance with the pre-December 2002 policy of the Bureau of Prisons ("BOP"), which permitted transfer to a CCC for the last six months of a prison sentence. For the reasons set forth below, Muniz' habeas petition is GRANTED.
Prior to December 2002, the BOP allowed prisoners, in appropriate cases, to serve the last six months of their sentence in a CCC. As of December 22, 2002, the BOP changed its policy to limit placement in a CCC to the lesser of the last 10% or the last six months of the term of imprisonment. Under this new policy, often referred to as the "Ten Percent Rule," Muniz, who claims to be sentenced to a term of eighteen months, would be eligible for a maximum of 1.8 months at a CCC rather than six months under the former BOP policy.
A CCC serves a critical role in re-integrating a prisoner into society. As noted by my colleague, The Honorable Jack Weinstein:
Transfer to a CCC is often of great significance to a prisoner and those he supports. The CCC prisoner can hold down a full time job and begin to become re-integrated into the community and his family while he is under strict supervision, returning to a prison-like setting each night. The family can receive support and a more normal physical and social relationship. The cost of CCC incarceration is less than incarceration in a prison, and the working prisoner can pay for part of CCC expenses.Solomon v. Zenk, No. 04 Civ. 2214, 2004 WL 2370651 *1 (E.D.N.Y. Oct. 22, 2004).
The BOP's change in policy has been the subject of extensive litigation, with numerous courts granting relief from the new rule based primarily on the ground that the statutory interpretation underlying the rule is erroneous. See, e.g., United States v. Mestel, No. 03 Cr. 276, 2004 WL 2472273 (D. Conn. Nov. 2, 2004) (rejecting statutory interpretation underlying ten percent rule); Solomon, 2004 WL 2370651 (same);Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004) (same); Goldings v. Winn, 383 F.3d 17, 23 (1st Cir. 2004) (same); Grimaldi v. Menifee, No. 04 Civ. 1340, 2004 WL 912099 (S.D.N.Y. Apr. 29, 2004) (same); Schoenfeld v. Menifee, No. 04 Civ. 3551, 2004 WL 1516797 (S.D.N.Y. July 7, 2004); Crowley v. Fed. Bureau of Prisons, 312 F.Supp.2d 453 (S.D.N.Y. 2004) (rejecting ten percent rule on statutory, APA, and ex post facto grounds). But see Loeffler v. Menifee, 326 F.Supp.2d 454 (S.D.N.Y. 2004). Adopting the reasoning of the majority of courts considering this issue, this court concludes that the 2002 BOP policy is based on an erroneous statutory construction. The respondent, who has not filed a timely response to Muniz' petition despite having been granted an extension of time, has not offered a compelling reason to determine otherwise.
For the reasons stated above, Muniz' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is GRANTED as follows: the BOP shall apply its pre-December 2002 CCC designation policy to Muniz. Pursuant to such policy, within ten (10) days of the date of this Order, the BOP shall make a good-faith determination of Muniz' eligibility for placement in a CCC, and, if it finds him to be eligible, shall place him in an appropriate CCC immediately thereafter.
The Clerk of the Court is directed to close the docket in the above-captioned case.
SO ORDERED.