Opinion
CRIMINAL ACTION NO. 01-10321-RWZ
August 6, 2003
MEMORANDUM OF DECISION
Defendant John Mikutowicz was sentenced on September 30, 2002, to a term of imprisonment of one year and one day. Defendant began serving his sentence at MCI Fort Devens, where this Court recommended that he be incarcerated. Pursuant to 18 U.S.C. § 3624(b)(1), he has received a credit to reduce his term of imprisonment by 50 days. According to defendant, he was recently informed that he would spend the final month of his term in a halfway house, pursuant to 18 U.S.C. § 3624(c).
Defendant alleges, however, that at the time he was sentenced, the Bureau of Prisons ("BOP") typically allowed certain offenders to spend the last six months of their sentences in halfway houses. Defendant now seeks, by a motion brought pursuant to 28 U.S.C. § 2255, to spend the final six months of his sentence in a halfway house. The policy relating to halfway houses changed in December 2002 following memoranda promulgated by the director of the BOP and Deputy Attorney General Larry D. Thompson. Three courts in this district have held that the memoranda violated the notice and comment requirements of the Administrative Procedure Act, 5 U.S.C. § 551, et seq., and/or the ex post facto clause. See Mallory v. United States, No. 03-cv-10220, slip op. at 3-4 (D.Mass. Mar. 25, 2003); Iacaboni v. United States, Nos. 03-cv-30005, 03-cv-30013, 03-cv-30012, 2003 WL 1442420 (D.Mass. Mar. 20, 2003); United States v. Serpa, No. 02-cr-10118, slip op. at 9-10 (D.Mass. Mar. 12, 2003). Defendant argues that he would be entitled to six months in a halfway house if this Court ordered the BOP to disregard the December 2002 memoranda.
Defendant's position is premised in large part on the contention that this Court during sentencing showed an awareness and understanding of the six-month policy of the BOP and presumably based the sentence upon it. The passage in the sentencing transcript quoted by defendant in support of this contention1 does not help him. It relates to setting the date for defendant to report to BOP custody. The Court never explicitly stated nor assumed that defendant would be spending his final six months in a halfway house. Had the Court expected defendant to serve more than half of his
1 The Court: Let me interrupt for just a moment. One of the things that I was thinking about as I was to think through this, these issues, is that I am assuming in the wintertime, there is less marine construction than there is in the summer. Therefore — no?
Mr. Connolly: It's the opposite.
The Court: Oh, well.
Mr. Connolly: Because in the summertime, the owners have tourist traffic, and they don't want marine contractors with their cranes in the marinas and in the waterways where there is recreational boating. They are more busy in the winter.
The Court: All right. So what is the proposal?
sentence in a halfway house, it would have so recommended. The change in BOP policy does not impinge on the Court's sentence in this case.
Moreover, the pre-release custody provision codified at 18 U.S.C. § 3624(c) plainly gives defendant no entitlement to spend the last six months of his term in a halfway house. The subsection reads as follows:
The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community.18 U.S.C. § 3624(c). Under the terms of the statute, a prisoner is only entitled to spend a reasonable part of the last ten percent of his term in a halfway house. The six-month figure is a maximum time within that final ten percent — so a person serving a ten-year sentence would be able to spend at most six months in a halfway house, as opposed to a full year. In this case, the statutory maximum is nearly equal to the one month the BOP anticipates defendant to spend in a halfway house. To the extent that the BOP had discretion to allow prisoners to spend more than the statutory ten percent in a halfway house, the mandamus-type relief requested by defendant is inappropriate.
Accordingly, defendant's motion is denied.