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Russell Robison v. Richard B. Ives

December 20, 2010




Petitioner Robison, a federal prisoner currently incarcerated at the Herlong Federal Correctional Institution, proceeds pro se with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. §2241. Petitioner stands convicted of a methamphetamine offense for which he is currently serving a prison term of 119 months. The parties agree that petitioner's expected release date is October 1, 2011, via good conduct time release.

Petitioner has twice requested transfer to a Residential Re-Entry Center (hereinafter "RRC") to serve the remainder of his sentence. Pursuant to 18 U.S.C. § 3624, the Bureau of Prisons (hereinafter "BOP") exercised its discretion to refer petitioner for RRC placement for the last 180 days of his sentence. Petitioner contends that the BOP misapplied applicable federal law in failing to refer him for lengthier RRC placement. In the pending amended petition, he seeks an order: (1) requiring respondent to evaluate him for transfer to a RRC based on the specific factors of 18 U.S.C. § 3621(b), without taking into account or utilizing a BOP Memorandum dated November 14, 2008; and (2) requiring respondent to "factually justify" the RCC placement determination.

In opposition to petitioner's requested relief, respondent contends: (1) this court lacks subject matter jurisdiction over the petition; (2) petitioner failed to exhaust available administrative remedies; and, in the alternative, (3) the petition should be denied on its merits.

The parties have consented to jurisdiction by a United States Magistrate Judge. For the reasons that follow, the petition will be denied on the merits.


Pursuant to the applicable statutory scheme, the BOP "shall designate" the place of a prisoner's imprisonment. 18 U.S.C. § 3621(b). The BOP may designate any available facility determined to be appropriate and suitable, considering five factors: (1) the facility's resources; (2) the nature and circumstances of the prisoner's offense; (3) the history and characteristics of the prisoner; (4) a statement by the court that imposed the sentence concerning the purposes for which the sentence was determined to be warranted or recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission. 18 U.S.C. § 3621(b)(1)-(5).

Under the Second Chance Act of 2007 ("SCA"), Pub. L. No. 110-199, 122 Stat. 657 (2008) (codified at 42 U.S.C. §§ 17501-17555, § 3624(c)), a separate statutory duty exists:

The Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the re-entry of that prisoner into the community. Such conditions may include a community correctional facility. 18 U.S.C. § 3624.

On April 14, 2008, five days after the SCA went into effect, BOP officials issued a memorandum (the "April 14 Memorandum") setting forth guidance for BOP staff administering the new law. Sacora v. Thomas, No. 10-35553, slip op. at 2 (9th Cir. Dec. 6, 2010). Quoting section 3624(c)(6)(C), the April 14 Memorandum notes that the SCA requires staff to ensure that pre-release placements in community corrections facilities are "of sufficient duration to provide the greatest likelihood of successful reintegration to the community," and additionally indicates "[t]his means Bureau staff must approach every individual inmate's assessment with the understanding that he or she is now eligible for a maximum of 12 months pre-release RRC placement." Id. The April 14 Memorandum cautions that "any other possible maximum timeframe must be ignored." Id. The April 14 Memorandum further notes[w]hile the Act makes inmates eligible for a maximum of 12 months pre-release RRC placements, Bureau experience reflects inmates' pre-release RRC needs can usually be accommodated by a placement of six months or less. Should staff determine that an inmate's pre-release RRC placement may require greater than six months, the Warden must obtain the Regional Director's written concurrence before submitting the placement to the Community Corrections Manager. Id. at 2-3.

On November 14, 2008, BOP officials issued another memorandum (the "November 14 Memorandum") providing guidance to BOP staff considering inmate requests for transfers to RRCs before the final 12 months of the inmate's sentence. Sacora v. Thomas, supra, slip op. at 3. The November 14 Memo notes that "[i]nmates are legally eligible to be placed in a RRC at any time during their prison sentence," and that "[s]taff cannot, therefore, automatically deny an inmate's request for transfer to a RRC." Id. "Instead, "inmate requests for RRC placement must receive individualized consideration." Id. Like the April 14 Memorandum, the November 14 Memorandum similarly advises BOP staff that "RRC placement beyond six months should only occur when there are unusual or extraordinary circumstances justifying such placement, and the Regional Director concurs." Id.


Respondent contends that the petition pending before this court should be dismissed for lack of subject matter jurisdiction because petitioner is not challenging the fact or duration of his confinement, but instead, the conditions of his confinement, which respondent contends are outside the scope of habeas corpus relief.

Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). As a general rule, a federal prisoner challenging the validity or constitutionality of his conviction must bring a motion to vacate, set aside, and/or correct his sentence pursuant to 29 U.S.C. §2255, while a challenge to the manner of a federal sentence's execution must be brought pursuant to 28 U.S.C. § 2241. See Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000).

Respondent argues that the United States Court of Appeals for the Ninth Circuit has characterized RRCs as places of incarceration. If RRCs are places of incarceration, respondent argues, then petitioner's challenge is not to the manner of the execution of his sentence, but rather, to the conditions of his confinement, a suit respondent ...

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