                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2005

Ferguson v. Apker
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4556




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Recommended Citation
"Ferguson v. Apker" (2005). 2005 Decisions. Paper 1057.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1057


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BPS-234                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-4556
                                   ________________

                                 FARLEY L. FERGUSON,
                                            Appellant

                                             v.

                                 CRAIG APKER, Warden

                     _______________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 04-cv-02164 )
                     District Judge: Honorable A. Richard Caputo
                    _______________________________________

                        Submitted For Possible Summary Action
                      Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                      May 5, 2005

      Before: RENDELL, FISHER and VAN ANTWERPEN, CIRCUIT JUDGES

                                   (Filed: June 7, 2005)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Farley L. Ferguson appeals from an order of the United States District Court for

the Middle District of Pennsylvania denying his petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2241. When he filed his section 2241 petition, Ferguson was an

inmate at Allenwood Federal Prison Camp in Pennsylvania, serving a 12-month sentence

for failure to pay taxes and to file income tax returns.

       On December 20, 2002, the Federal Bureau of Prisons (BOP) adopted a policy

limiting a prisoner’s Community Corrections Center (CCC) placement to the lesser of

10% of a prisoner’s sentence or six months. See 18 U.S.C. § 3624(c). Before the policy

change, a prisoner was eligible for up to 6 months of CCC custody, even if the 6 months

constituted more than 10% of the prisoner’s sentence.

       In applying the new policy, the BOP set Ferguson’s CCC placement for April 12,

2005, the final 30 days of his sentence. In his section 2241 petition, Ferguson claimed

that he was entitled to a CCC placement for the final 6 months of his sentence. Ferguson

requested that he be transferred to a CCC facility, and also requested that the BOP

consider him under the criteria in place before the December 2002 policy change.

       The District Court explained that the appropriate remedy in this case would be to

grant the writ and direct the BOP to consider Ferguson for CCC placement under the pre-

December 2002 policy. The District Court then concluded that Ferguson had already

received the relief the Court would have awarded him because the BOP had conducted a

Special Team Meeting on October 12, 2004, to consider Ferguson’s CCC placement

under its pre-December 2002 policy. Moreover, the District Court reviewed the factors

considered by the BOP in its reconsideration of Ferguson’s CCC placement date, and



                                              2
concluded that the BOP’s decision was neither irrational nor arbitrary, and that there was

thus no basis for interfering with the BOP’s decision. Accordingly, the District Court

denied relief. Ferguson timely filed this appeal.

       We agree with the District Court that there is no basis for interfering with the

BOP’s decision regarding Ferguson’s CCC placement date. Assuming arguendo that

Ferguson was entitled to reconsideration under the prior BOP policy, the record reflects

that the BOP considered Ferguson for CCC custody under its pre-December 2002 policy

on October 12, 2004, and Ferguson has thus been afforded the relief to which he would

have been entitled. Ferguson did not have a right to immediate CCC placement; rather,

he only had a right to have the BOP consider whether he should be transferred to a CCC.

       On appeal Ferguson argues that the District Court should have converted his

section 2241 petition into a civil rights action. See Richmond v. Scibana, 387 F.3d 602

(7th Cir. 2004) (holding that a prisoner may not use a section 2241 habeas proceeding to

contest the BOP’s CCC placement policy). We see no need to address this issue because

the BOP expressly elected to address the merits of Ferguson’s claims. Thus, regardless of

whether this action was proper as a section 2241 habeas proceeding, or whether it should

have been brought as a civil rights action, the District Court properly reached the merits

and denied relief. To the extent that Ferguson attempted to raise an equal protection

claim, that claim lacks merit. Ferguson has not alleged that other similarly situated




                                             3
prisoners were released into CCC custody for 6 months even though their CCC placement

constituted more than 10% of their sentence.

      In sum, because Ferguson’s appeal of the denial of his petition presents “no

substantial question,” 3d Cir. LAR 27.4 and I.O.P. 10.6, we will summarily affirm the

District Court’s judgment.




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