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In United States v. West, No. Civ. 03-CV-70239-DT, 2003 WL 1119990 (E.D.Mich., Feb. 20, 2003), the court clearly stated, "the explicit exhaustion requirements which are contained in the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Prison Litigation Reform Act (PLRA) do not apply to habeas petitions filed under 28 U.S.C. § 2241."
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Civil No. 03-CV-70239-DT
February 20, 2003
OPINION AND ORDER GRANTING IN PART PETITION FOR WRIT OF HABEAS CORPUS
Dr. Alex West, ("Petitioner"), has filed an emergency motion to stay transfer and correct and/or vacate sentence, pursuant to 28 U.S.C. § 2241 and 2255, which is construed by the Court as a petition for writ of habeas corpus. In his application, filed by attorney Arthur Jay Weiss, Petitioner challenges the Bureau of Prisons' (B.O.P.) decision to transfer him from the community corrections center (C.C.C.) in Detroit, Michigan, where he is currently serving his federal sentence, to a federal prison. For the reasons stated below, Petitioner's application for writ of habeas corpus is GRANTED IN PART.
I. Background
Petitioner was charged in a two count federal indictment with one count of unlawful distribution of vicodin, 21 U.S.C. § 841(a)(1); and one count of health care fraud, 18 U.S.C. § 1347. Pursuant to a Rule 11 plea agreement with the U.S. Attorney's Office, Petitioner pleaded guilty to both counts of the indictment.At the time of sentencing on May 7, 2002, the United States Attorney moved pursuant to U.S.S.G. § 5k1.1 for the Court to depart downward from the sentencing guidelines range of 21-27 months based upon Petitioner's substantial assistance in the investigation and prosecution of others. After a conference in chambers with counsel and the probation officer, during which various sentencing options were discussed, the Court sentenced Petitioner to serve twelve months and a day with the Bureau of Prisons. The Court also recommended that Petitioner be placed in a community corrections center. This was an option discussed with the government at some length during the sentencing hearing and was based in part on Petitioner's having already paid full restitution, his extensive cooperation, and the unlikelihood of any future criminal behavior. Because the government raised a concern that the B.O.P. might not honor a recommendation for C.C.C. placement which exceeded twelve months, the Court adjourned the sentencing hearing to call the B.O.P. to resolve the issue. During the break, the Court was assured by the B.O.P. that it would follow the Court's recommendation of C.C.C. placement for twelve months and one day for Petitioner. Thus, in sentencing Petitioner to the B.O.P., this Court relied on the B.O.P.'s long-standing practice of following a judicial recommendation that an offender be permitted to serve his or her sentence in a C.C.C. and on the express representation that the recommendation would be followed in this case. According to Petitioner's motion, he began serving his sentence at a community corrections center on August 6, 2002.
On December 20, 2002, the B.O.P. announced a new policy whereby federal inmates could no longer serve terms of imprisonment in community corrections centers. Although the policy is primarily prospective, it is to be applied retrospectively to inmates assigned to C.C.C.s who, as of December 16, 2002, had more than 150 days remaining to serve on their prison terms. The B.O.P.'s change in policy is based on a memorandum prepared by the Department of Justice's Office of Legal Counsel on behalf of Deputy Attorney General Larry Thompson. This memorandum indicates that the term "community confinement" is not synonymous with the term "imprisonment" and that the Sentencing Guidelines therefore preclude the B.O.P. from allowing inmates to serve a term of imprisonment at a community corrections center.
In his emergency motion to stay transfer and correct and/or vacate sentence, Petitioner contends that the B.O.P.'s decision to apply this new policy retroactively to his case and to transfer him from the community corrections center to a federal prison violates his right to due process.
II. Discussion
As an initial matter, this Court must determine how best to characterize Petitioner's motion. Petitioner initially brought this motion pursuant to 28 U.S.C. § 2241. In his reply to the U.S. Attorney Office's response to his motion, Petitioner moved to amend his motion to embody both 28 U.S.C. § 2241 and 28 U.S.C. § 2255, the statute which governs the filing of a motion to vacate sentence.
A petition for writ of habeas corpus filed by a federal inmate under 28 U.S.C. § 2241 is proper where the inmate is challenging the manner in which his or her sentence is being executed. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); Perez v. Hemingway, 157 F. Supp.2d 790, 793 (E.D. Mich. 2001). A § 2241 petition typically challenges the execution of a federal prisoner's sentence, "including such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions." Jiminian v. Nash, 245 F.3d 144, 146 (2nd Cir. 2001).
In United States v. Jalili, 925 F.2d 889, 893-894 (6th Cir. 1991), the Sixth Circuit held that a prisoner's claim that the sentencing court lacked jurisdiction to order that his term of imprisonment be served at a community treatment center was a challenge to the place of imprisonment, rather than to the fact of his conviction, and thus, the district court did not have jurisdiction to consider petitioner's challenge under § 2255. The Sixth Circuit further concluded that any such challenge would be cognizable only under § 2241. Id.
This Court concludes that Petitioner's challenge to the B.O.P.'s decision to transfer him from a community corrections center to a more secure facility constitutes a challenge to how his federal sentence is being executed. Petitioner's motion, therefore, is properly construed as a petition for writ of habeas corpus brought under 28 U.S.C. § 2241.
In the response to Petitioner's motion, the government urges this Court to dismiss Petitioner's motion because he has not yet exhausted his administrative remedies. The requirement that federal prisoners exhaust their administrative remedies before filing a habeas petition was judicially created and is not a statutory requirement. Because exhaustion of administrative remedies is not required by statute, it is not jurisdictional. Brown v. Rison, 895 F.2d 533 535 (9th Cir. 1990). Any further exhaustion of administrative remedies by Petitioner is not required to confer subject matter jurisdiction by this Court over Petitioner's § 2241 petition, because the explicit exhaustion requirements which are contained the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Prison Litigation Reform Act (PLRA) do not apply to habeas petitions filed under 28 U.S.C. § 2241. Hicks v. Hood, 203 F. Supp.2d 379, 382 (D. Or. 2002). Moreover, in light of the fact that the director of the B.O.P. has announced that the B.O.P. will no longer place inmates in C.C.C.s for the imprisonment portions of their sentences, as well as the fact that this new policy is in response to a memorandum from the U.S. Attorney General, any further exhaustion on Petitioner's part would be futile and will thus be excused. See e.g. Boucher v. Lamanna, 90 F. Supp.2d 883, 887-888 (N.D. Ohio 2000) (federal prisoner not required to exhaust administrative remedies prior to filing federal habeas petition which challenged B.O.P.'s policy denying early release to prisoners who received a weapons possession sentencing enhancement; exhaustion would be futile where the B.O.P.'s policy was mandatory in nature and left nothing to be reconsidered during the administrative appeal, the B.O.P. consistently defended the policy, and the prisoner would be entitled to immediate release if policy was declared invalid); Camper v. Benov, 966 F. Supp. 951 (C.D. Cal. 1997)(same). In this case, it would be futile for Petitioner to exhaust his administrative remedies in light of the B.O.P.'s policy. Petitioner will therefore not be required to exhaust his administrative remedies prior to instituting the current challenge to the execution of his sentence.
The Due Process Clause of the U.S. Constitution places limits on the retroactive imposition of criminal penalties. Snowden v. Lexmark Intern., Inc., 237 F.3d 620, 624 (6th Cir. 2001). The substantive question for this Court is whether the B.O.P. violated Petitioner's federal constitutional rights by applying retroactively to Petitioner's case its new policy which prevents inmates from serving their terms of imprisonment in community corrections centers.
In DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir. 1993), the Court considered the due process implications of a retroactive correction of an improper sentence. In that case, the state court had revoked parole and reimposed the defendant's original life sentence, on the ground that its prior decision granting early relief was mistaken. The Court of Appeals affirmed the district court's grant of the writ of habeas corpus, stating that "notions of fundamental fairness do place some temporal limit on later increases in sentence." Id. at 35. Recognizing that there is "no single touchstone for making this judgment", the Court identified several factors to be considered, including "the lapse of time between the mistake and the attempted increase in sentence", . . . "whether or not the defendant contributed to the mistake and the reasonableness of his intervening expectations", . . . . "the prejudice worked by a later change", and . . . "the diligence exercised by the state in seeking the change." Id.
Citing DeWitt, the district court recently held in Culter v. United States, ___ F. Supp.2d ___; 2003 WL 184022 (D.D.C. January 27, 2003) that the retroactive application of this new B.O.P. policy and the resultant transfer to a federal prison of a prisoner whose 12-month C.C.C. term was already half served at the time of the policy change violated the Due Process Clause and was precluded by equitable estoppel. In so ruling, the court noted that "halfway house placement was central to the Court's overall sentencing objectives." Culter v. United States, 2003 WL 184022, * 3. The court noted that it had relied on the B.O.P.'s "long-standing practice" of following a judicial recommendation that a Zone C offender [under the Federal Sentencing Guidelines] be permitted to serve his or her sentence at a C.C.C. The court further indicated that its reliance upon the B.O.P.'s practice "was far from fanciful", but was instead induced by the government's own policies and statements which gave the court "every reason to expect that its placement recommendation would be carried out." Id. The court observed that it was undisputed that at the time of the defendant's sentence, the B.O.P. had consistently interpreted the phrase "sentence of imprisonment" in U.S.S.G. § 5C1.1(d) to include confinement of a prisoner in a halfway house. In fact, since the Federal Sentencing Guidelines took effect in 1987, the B.O.P. had never interpreted the Guidelines to preclude halfway house designation as a method of satisfying a sentence of imprisonment. Id. The court noted that: "[A]cross the country, the agency's statements and its actions told judges that if they recommended CCC placement for a Zone C offender . . . those recommendations would generally be followed." Id. The court further observed that the practice of C.C.C. placement for Zone C offenders had been "routine" and there was no indication that the federal government, at least in that jurisdiction, had ever objected to the legality of a court's recommendation of halfway house placement for a Zone C offender. There was also no indication that the Department of Justice had ever suggested, prior to December of 2002, that the B.O.P. lacked the legal authority to follow through with such a designation. Id. After noting that the petitioner had been sent to a community corrections center and had been doing well in that placement, the court noted that the petitioner's success was threatened, not by anything that the petitioner had done, but rather by the "newly-announced change in B.O.P. policy." Id. at * 5.
In finding the B.O.P.'s retroactive application of their new policy to be unconstitutional, the court cited the First Circuit decision in DeWitt, supra, and further noted that the doctrine of equitable estoppel has been used to enjoin the government from correcting its legal errors when to do so "would work a serious individual injustice not counterbalanced by considerations of the public interest." Id. at * 6. The court held that regardless of the legal rubric, the government's "long-standing alleged misinterpretation" of the law concerning the placement of federal inmates at community corrections centers, and the reliance induced by the B.O.P.'s misinterpretation, precluded the government from retrospectively correcting its mistake by sending the petitioner to prison. Id.
In the instant case, Petitioner's expectations with respect to whether the B.O.P. would honor the C.C.C. recommendation were supported not only by the long-standing B.O.P. practice, but by controlling case law in this Circuit. In United States v. Strozier, 940 F.2d 985 (6th Cir. 1991), the Sixth Circuit expressly held that community confinement is equivalent to imprisonment under § 5C1.1(d)(2) of the Federal Sentencing Guidelines (the section governing Zone C sentences), stating:
It is clear from the plain language of section 5C1.1(d)(2), underlined above, that a split sentence merely substitutes community confinement for imprisonment. In fact, section 5C1.1(e)(2) specifically equates one day of community confinement with one day of imprisonment for the purpose of calculating the term of imprisonment. They are, therefore, treated as equivalents. Finally, the application notes to U.S.S.G. § 5C1.1 repeatedly make clear that a given "term of imprisonment" may be comprised of both a period of incarceration and a period of community confinement.Id. at 988 (internal citations omitted).
The Sixth Circuit further noted that "[T]he underlying purpose of a split sentence is to allow part of the confinement to be served in an institution which offers a more flexible living environment, not to reduce the total period during which defendant must remain accountable to the government." Id. (citing to Federal Sentencing Guidelines Manual, Chapter One, Part A Sentencing Commentary 4(d), "Probation and Split Sentences").
Although the context in Strozier was different, the interpretation of the sentencing guidelines was not limited to the supervised release issue under consideration, and the B.O.P. has accepted and followed that interpretation for fifteen years.
Nor is a different result required under United States v. Addonizio, 442 U.S. 178 (1979). Reliance on a published opinion of the Sixth circuit Court of Appeals and the express representation of the B.O.P. (not only as a general matter, but in Petitioner's specific case) implicates due process concerns far greater than a general awareness and reliance on the likelihood of parole, which was the issue in Addonizio.
With respect to the factors identified in DeWitt and followed in Culter, Petitioner West's case for a stay is compelling. Placement of the Petitioner in a community corrections center was central to this Court's overall sentencing objectives. In deciding what sentence to impose, this Court relied on the B.O.P.'s long-standing practice of following a court's recommendation that an offender be permitted to serve his or her prison sentence at a C.C.C., and its express representation that the recommendation would be honored for Petitioner West. This reliance was further supported by Strozier, supra, controlling law in this Circuit, which held that community confinement is the equivalent of imprisonment under the sentencing guidelines. The B.O.P.'s policy of defining community confinement as a form of imprisonment within the Federal Sentencing Guidelines was in effect for fifteen years at the time of Petitioner's sentence and the B.O.P. did not discover their "error" in the interpretation of the sentencing guidelines until after Petitioner had served over four months of his sentence. Finally, Petitioner did not contribute to this mistake in any way. To permit the B.O.P. to apply its new policy retroactively to Petitioner and to transfer him to a federal prison would violate Petitioner's due process rights.
This Court rejects the government's argument that this is simply a case of frustrated sentencing expectations. Instead, this Court believes that the government's long-standing interpretation and application of the law concerning whether an inmate could serve his or her federal sentence at a C.C.C. affirmatively misled the Court into imposing a particular sentence. In this case, the government moved at the time of sentencing for a downward departure from the sentencing guidelines based upon Petitioner's substantial assistance, pursuant to U.S.S.G. § 5K1.1. A government's substantial assistance motion authorizes a district court to depart from the sentencing guidelines to any reasonable sentence, so long as the sentence imposed is not specifically prohibited by statute. See United States v. Snelling, 961 F.2d 93, 97 (6th Cir. 1991). Had the B.O.P.'s new policy been in place at the time of sentencing, or had the Court been aware of the impending policy change, instead of sentencing Petitioner to a term of imprisonment, the Court would have sentenced Petitioner to a term of probation, with a condition of probation being Petitioner's placement in a community corrections center. See United States v. Canavan, 2003 WL 245226, * 1 (D. Minn. January 22, 2003) (granting defendant's motion to correct sentence, where the B.O.P.'s subsequent policy change thwarted the court's intentions to sentence the defendant to a community corrections center). In this case, the change in B.O.P. policy, without this Court being given any notice that such a change was coming, likewise thwarted this Court's intentions of placing Petitioner in a community corrections center.
This Court concludes that the B.O.P. is estopped from relying on its new policy directive to remove Petitioner from the community corrections center in Detroit and transferring him to a federal prison. For the government to imprison Petitioner simply because the B.O.P. "was misguided about the scope of its authority and this misinterpretation was fostered and shared by both the Executive and Judicial branches for more than fifteen years is simply arbitrary and unfair." Culter, 2003 WL 180422, at * 8.
III. ORDER
Based upon the foregoing,
IT IS HEREBY ORDERED THAT Petitioner's application for writ of habeas corpus is GRANTED IN PART. IT IS FURTHER ORDERED that the Bureau of Prisons is enjoined from transferring Dr. Alex West from the community corrections center in Detroit, Michigan pursuant to the new inmate designation policy described in the December 16, 2002 memorandum from Deputy Attorney General Larry Thompson to B.O.P. director Kathleen Hawk Sawyer.