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Tanner v. Deboo

April 15, 2009

MAX C. TANNER, PETITIONER,
v.
KUMA DEBOO, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Max Tanner is a federal inmate proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges the April 30, 2008, decision by the Bureau of Prisons ("BOP") referring him to a Residential Re-entry Center for the final six months of his term. Petitioner argues he should receive a placement for twelve months under the Second Chance Act. Upon careful consideration of the record and the applicable law, the undersigned will recommend that this petition for habeas corpus relief be dismissed.

II. BACKGROUND

A. Factual Background

Petitioner was originally sentenced on November 8, 2002.*fn1 On June 25, 2007, he filed his original federal petition arguing that the BOP was applying certain regulations, specifically 28 C.F.R. §§ 570.20, 570.21, in violation of 18 U.S.C. § 3621(b), with regard to placement in a Residential Re-entry Center ("RRC"). Original Petition at 4. This matter was then stayed on February 29, 2008, pending the Ninth Circuit's adjudication of Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008). On April 30, 2008, the BOP evaluated petitioner and decided that he would be transferred to an RRC for the final six months of his sentence. Answer, Ex. 4. That transfer was scheduled for May 19, 2008.

Petitioner objected and sought placement for 12 months from his case manager. That request was denied on May 18, 2008. Answer, Ex. 6. Petitioner next filed a request for an informal resolution on May 20, 2008, again seeking a placement for 12 months. Answer, Ex. 7. On May 22, 2008, that request was denied. Id.

On May 28, 2008, petitioner filed a request for an administrative remedy with the Warden. Answer, Ex. 8. The Warden denied that request on June 19, 2008. Id. Petitioner finally submitted an Administrative Remedy Appeal on June 28, 2008, which was denied on July 17, 2008.*fn2 Answer, Ex. 9.

On September 29, 2008, the stay in this matter was lifted. Petitioner filed a third amended petition on October 6, 2008, arguing that the BOP's denial of a placement for 12 months was "contrary to the intent and purpose of the Second Chance Act and contrary to their own policy memorandum." Third Amended Petition at 4.

B. Statutory and Regulatory Background

The BOP has the authority, under 18 U.S.C. § 3261(b), to designate the location of an inmate's imprisonment. The BOP's policy prior to December 13, 2002, was to exercise its discretion in allowing prisoners to serve part or all of their imprisonment in an RRC. Rodriguez, 541 F.3d at 1182. The Department of Justice Office of Legal Counsel ended that practice by issuing a legal opinion that § 3621(b) did not authorize inmate placement in an RRC for an entire term because it did not constitute imprisonment. Id.

The BOP changed its policy on December 20, 2002, by limiting an inmate's eligibility for placement in an RRC to six months, or the final ten percent of his sentence, whichever was shorter. Id. The First and Eighth Circuits invalidated that policy because it failed to recognize the BOP's discretion in transferring inmates at anytime to an RRC. Id. In response the BOP decided to "exercise its discretion categorically to limit inmates' community confinement to the last ten percent of the prison sentence being served, not to exceed six months." Id. (quoting 69 Fed.Reg. 51213). These rules were finalized on January 10, 2005, and were published as 28 C.F.R. §§ 570.20, 570.21. Id.

On April 9, 2008, the Second Chance Act was signed into law, authorizing the BOP to consider placing inmates in an RRC for up to the final 12 months of their sentence. 18 U.S.C. § 3624. As a result, on April 14, 2008, the BOP issued a memorandum stating that 28 C.F.R. §§ 570.20 and 570.21 "are no longer applicable, and must no longer be followed." Answer, Ex. 10 at 4. Instead inmates were to be: individually considered for pre-release RRC placements using the following five-factor criteria from 18 U.S.C. § 3621(b):

(1) The resources of the facility contemplated;

(2) The nature and circumstances of ...


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