Opinion
02 CV 5684 (NG)(SMG), 04 CV 1789 (NG)(SMG).
April 30, 2004
ORDER
Petitioner Carlos Sanchez, was convicted, following a jury trial, of thirteen counts of conspiracy, bank fraud and making false statements to HUD in violation of 18 U.S.C. § 371, 1344 and 1010 respectively. He was sentenced on March 9, 2001 to, among other things, 46 month concurrent terms of imprisonment on the first three counts and 24 month concurrent terms of imprisonment on each of counts four through thirteen. Petitioner appealed his conviction on a number of grounds which the Court of Appeals rejected via summary order on March 25, 2002. On September 16, 2002, petitioner filed a motion pursuant to 28 U.S.C. § 2255 seeking to overturn his conviction; that petition is currently pending before the court. Via an undated motion entitled "Motion to Transfer to Halfway House or Home Confinement," petitioner seeks an order directing the Bureau of Prisons ("BOP") to consider him eligible for designation to a half-way house or home confinement for the last six months of his imprisonment pursuant to 18 U.S.C. § 3621(b) and 3624(c). Specifically, petitioner claims that the December 13, 2002, Memorandum Opinion issued by the Office of Legal Counsel, limiting the use of home-confinement to the lesser of 6 months or 10% of a prison term is illegal. Respondent opposes petitioner's motion on the grounds that (1) Section 5C1.1 of the Sentencing Guidelines requires that a Zone D offender serve a term of incarceration, which does not include home confinement; (2) Section 3624(c) is properly interpreted by the BOP to allow the petitioner to be designated to confinement only during the final 10% of his prison term; and (3) petitioner fails to state with specificity why he should be transferred to home confinement.
As an initial matter, petitioner appears to be bringing this motion as part of his pending Section 2255 petition. However, as petitioner seeks to compel the BOP to perform a duty he believes is owed to him, the court construes this motion as a new action brought pursuant to the mandamus statute, 28 U.S.C. § 1361. See Distefano v. Federal Bureau of Prisons, 2004 WL 396999 *1 (S.D.N.Y. 2004). Accordingly, the court has directed the Clerk of Court to assign a new docket number to this new action. The new docket number is 04-CV-1789. The Court accepts the new action as related to plaintiff's original action bearing Docket Number 02-CV-5684.
So construed, petitioner must demonstrate: "(1) a clear right in the [petitioner] to the relief sought; (2) a plainly defined and peremptory duty on the part of the [respondent] to do the act in question; and (3) no other adequate remedy available." Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. 1989).
Section 3624(c) provides that:
"The Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last ten per centum of the term to be served under conditions that will afford a prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community. The authority provided by this sub-section may be used to place a prisoner in home confinement . . ."
At the time petitioner was sentenced, the BOP had interpreted Section 3624(c) to allow it to consider prisoners for placement in a community corrections center or home-confinement for the last 6 months of their sentences, even if this occurred before the prisoner's 10% date. See Distefano, 2004 WL 396999 *1 (S.D.N.Y. 2004). However, on December 13, 2002, the Office of Legal Counsel declared this practice unlawful and stated that the BOP has only the statutory authority to transfer prisoners to home-confinement for the lesser of the last ten percent or six months of the prisoner's good-time-adjusted sentence.
Respondent argues that, an offender, like petitioner, whose Guideline Range falls within Zone D must serve a term of imprisonment, and, as decisional law holds that community confinement does not constitute imprisonment, the Bureau of Prisons is precluded from designating Petitioner to a half-way house "at this time." Respondent's argument that community confinement is not the equivalent of imprisonment has been rejected by several courts in this circuit, see Distefano at *4, quoting Zucker v. Menifee, 2004 WL 102779, at *6-11 (S.D.N.Y. 2004) and by the Office of Legal Counsel itself, which in a 1992 opinion stated that there is "no basis in Section 3621(b) for distinguishing between residential community facilities and secure facilities." This Court agrees that, pursuant to Sections 3621(b) and 3624(c), the BOP has the authority to allow petitioner to serve his remaining prison term in home confinement or in a half-way house, and respondent's argument to the contrary is rejected. Nevertheless, the ability of the BOP to consider petitioner for home confinement prior to his ten percent date does not confer on petitioner a right to that consideration or to home confinement prior to his ten percent date. See United States v. Zglewszewski, 2004 WL 350187 (E.D.Pa) (defendant not sentenced to CCC has no right to placement in a CCC prior to his ten percent date).
As petitioner has failed to demonstrate that he "has a clear right to the relief sought," his motion for a writ of mandamus is denied. The Clerk of Court is directed to close case number 04-CV-1789.
SO ORDERED.