                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2008

Nunez v. Lindsay
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3307




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Recommended Citation
"Nunez v. Lindsay" (2008). 2008 Decisions. Paper 875.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/875


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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-3307
                                     ___________

                                  GERSON NUNEZ,
                                             Appellant

                                            v.

                              CAMERON LINDSAY
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. Civil No. 06-1413)
                    District Judge: Honorable Thomas I. Vanaskie
                     ____________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 2, 2008

               Before: RENDELL, JORDAN and ROTH, Circuit Judges

                                  (filed: July 8, 2008 )
                                       _________

                                       OPINION
                                      _________

PER CURIAM

      Gerson Nunez appeals a judgment of the District Court denying his petition for a

writ of habeas corpus. We will reverse.

      Nunez is serving a sentence of 151 months at Federal Prison Camp-Canaan, in
Waymart, Pennsylvania, for a series of drug-related offenses. He filed this pro se petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District

Court for the Middle District of Pennsylvania. Proceeding in forma pauperis, Nunez

sought an order directing the Bureau of Prisons (“BOP”) to transfer him to a specific

halfway house, or Community Correctional Center (“CCC”), until his release in 2010.

The District Court denied the petition, and Nunez moved for reconsideration. The

District Court denied his motion for reconsideration, and Nunez timely appealed.

       The District Court had jurisdiction under 28 U.S.C. § 2241. Woodall v. Fed.

Bureau of Prisons, 432 F.3d 235, 243-244 (3d Cir. 2005). We have jurisdiction under 28

U.S.C. §§ 1291 and 2253(a). Id. at 239 n.3.

       In 2004, Nunez filed an Inmate Request to Staff form, requesting to be placed at

one of three CCCs. On December 2, 2004, the BOP denied the request, noting that Nunez

was not eligible for transfer at that time. Nunez appealed through all levels of the BOP

administrative remedy process. On November 3, 2005, the Regional Director affirmed

the denial of a transfer on the basis of 28 C.F.R. § 570.21(a), which provides: “a) The

Bureau will designate inmates to community confinement only as part of pre-release

custody and programming, during the last ten percent of the prison sentence being served,

not to exceed six months.” See 28 C.F.R. § 570.21(a), invalidated by Woodall, 432 F.3d

at 244. As Nunez was not within ten percent or six months of his release, scheduled for

March 2010, the BOP determined he was ineligible for a transfer to a CCC under



                                              2
§ 570.21(a).

       We invalidated this regulation because it conflicted with the statutory scheme.

Woodall, 432 F.3d at 249. Title 18 of the United States Code, Section 3621(b) provides

that the BOP “shall designate the place of the prisoner’s imprisonment,” based on several

enumerated factors, including:

               (1) the resources of the facility contemplated; (2) the nature and
               circumstances of the offense; (3) the history and characteristics of the
               prisoner; (4) any statement by the court that imposed the sentence - (A)
               concerning the purposes for which the sentence to imprisonment was
               determined to be warranted; or (B) 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). Title 18 of the United States Code, Section 3624(c) directs the

BOP, when possible, to place prisoners during the last ten percent of their incarceration,

not to exceed six months, in facilities (such as CCCs) that offer a “reasonable opportunity

to adjust to and prepare for the prisoner’s re-entry into the community.” 18 U.S.C. §

3624(c). In Woodall, we determined that the temporal restriction on transfers to CCCs

imposed by 28 C.F.R. § 570.21(a), i.e., that the Board would not consider a prisoner’s

transfer until he was already statutorily eligible for the placement, precluded the BOP

from giving effect to the factors mandated by § 3621(b). 432 F.3d at 249 (noting

“unavoidable” conflict between BOP regulation and governing statute). Accordingly, we

invalidated the regulation.

       The BOP denied Nunez’s request pursuant to the very regulation that Woodall



                                              3
invalidated the regulation one month after the Reginoal Director’s reliance on it. While

Nunez does not have a right to a transfer, he has a right to have his request considered in

line with the appropriate factors. So that the BOP can properly consider the request, we

will REVERSE the judgment of the District Court and REMAND with instructions for

the BOP to consider Nunez’s transfer request without the limitation contained in the

invalidated regulation.




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