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


9-16-2005

Miller v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1654




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                                        NOT PRECEDENTIAL

      IN THE UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 05-1654


                        DAVID MILLER

                            Appellant

                                v.

FEDERAL BUREAU OF PRISONS; HARLEY G. LAPPIN, in
his official capacity as director of the Federal Bureau of Prisons;
 WARDEN JOHN NASH, in his official capacity as warden of
      Federal Correctional Institution-Fort Dix, New Jersey


        On Appeal from the United States District Court
                For the District of New Jersey
                   (D.C. No. 1:04-cv-06286)
         District Judge: Honorable Freda L. Wolfson


         Submitted Under Third Circuit L.A.R. 34.1(a)
                       June 14, 2005


                          No. 05-1083


                       STEVEN SICHEL

                            Appellant

                                v.

HARLEY G. LAPPIN, in his official capacity as director of the
 Federal Bureau of Prisons; WARDEN JOHN NASH, in his
 official capacity as warden of Federal Correctional Institution;
            THE FEDERAL BUREAU OF PRISONS


         On Appeal from the United States District Court
                 For the District of New Jersey
                     (D.C. No. 04-cv-05271)
          District Judge: Honorable Freda L. Wolfson


          Submitted Under Third Circuit L.A.R. 34.1(a)
                        June 14, 2005


     Before: ALITO, SMITH, and BECKER, Circuit Judges

                    (Filed: September 16, 2005)

                               OPINION




BECKER, Circuit Judge.

       David Miller appeals from an order of the District Court denying

his petition for a Writ of Habeas Corpus. In his pro se petition, Miller

challenges the legality of a 2002 Bureau of Prison (“BOP”) policy

change that limited the time a prisoner may be placed in a Community

Corrections Center (“CCC”) to the lesser of six months or ten percent of

the prisoner’s total sentence.1 This appeal presents the question whether

the BOP’s CCC placement policy is consistent with its statutory grant of



        1In light of Steven Sichel’s recent release from incarceration, his
appeal, docketed at No. 05-1083, is moot.

                                    2
authority. Because we hold that the policy is contrary to the plain

language of 18 U.S.C. § 3624(c), we will vacate the order of the District

Court denying Miller’s petition and remand for further proceedings

consistent with this opinion.

                    I. Facts and Procedural History

       Miller is incarcerated at the Federal Correctional Institution at

Fort Dix, New Jersey, serving a 13-month sentence imposed by the

District Court for the Eastern District of Pennsylvania. On December 13,

2004, Miller was notified by the BOP that his projected release date was

October 24, 2005. He was also informed that he would be eligible for

pre-release placement at a CCC on September 23, 2005. He would

therefore spend approximately one month, or not quite ten percent of his

total sentence, at a CCC. Given the BOP’s previous practice of placing

certain offenders in CCCs for six months or longer, Miller requested

such placement for the last six months of his sentence. He claims that he

received no response to his request.

       Miller then challenged the BOP’s placement decision by filing

a petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, in

the District Court for the District of New Jersey, where he was

incarcerated. Miller claimed that the new BOP policy limiting his time

in a CCC to the lesser of six months or ten percent of his sentence was

based on an erroneous interpretation of two statutory provisions of the


                                   3
Sentencing Reform Act of 1984 – 18 U.S.C. §§ 3621(b) and 3624(c).

The District Court summarily denied the petition without requesting an

answer from the Government, finding that the BOP “did not violate

federal law by limiting [Miller’s] eligibility for transitional placement.”

        We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).

We exercise plenary review over the District Court’s legal conclusions

and apply a clearly erroneous standard to its findings of fact. See

Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002).2


         2The Government contends that the District Court lacked
jurisdiction to consider Miller’s § 2241 petition because Miller is
contesting the “conditions of [his] confinement” rather than the fact or
duration of his sentence. Therefore, it claims, habeas corpus does not lie.
(Appellee’s Br. at 1.) While resolution of this issue is far from clear, we
are satisfied, if barely, that Miller presents a proper habeas claim.
         The Government relies primarily on Leamer v. Fauver, 288 F.3d
532 (3d. Cir. 2002), and related cases for the proposition that jurisdiction
here is not proper. Leamer concluded that § 1983 relief is unavailable
“whenever the challenge ultimately attacks the ‘core of habeas’ – the
validity of the continued conviction or the fact or length of a sentence.”
Id. at 542. However, Leamer focuses on whether a prisoner has the
option of bringing a civil rights action as opposed to a habeas petition.
It does not conclusively determine when a prisoner is precluded from
filing a habeas petition. Moreover, Leamer acknowledges that there are
cases at the intersection of § 1983 and habeas. Id. at 543-44.
         In contrast, we have held that § 2241 allows a federal prisoner to
challenge the “execution” of his sentence in habeas. See United States
v. Eakman, 378 F.3d 294 (3d Cir. 2004); Coady v. Vaughn, 251 F.3d
480, 485 (3d. Cir. 2001). In Coady, we observed that § 2255 is limited
to challenges to the validity of a sentence while § 2241 is the only statute
conferring habeas jurisdiction to “hear the petition of a federal prisoner
who is challenging not the validity but the execution of his sentence.”
251 F.3d at 485. We added that “we are not unmindful of the cases
which hold that federal prisoners challenging some aspect of the
execution of their sentence, such as denial of parole, may proceed under
Section 2241.” Id. Other circuits have also held that prisoners

                                     4
  II. Bureau of Prison Policy and the Relevant Statutory Provisions

        Before the policy change that is the subject of this dispute, the

BOP generally considered prisoners for CCC placement for up to six

months at the end of their sentences, regardless of the total sentence

length. “These practices were entirely routine, and were all but taken for

granted by all participants: the BOP, the Probation Office, the U.S.

Attorney’s Office, the defense bar, and the judiciary.” United States v.

Serpa, 251 F.Supp. 2d 988, 990 (D. Mass. 2003) (citation omitted).

However, on December 13, 2002, the Department of Justice Office of

Legal Counsel

(“OLC”) issued a memorandum that concluded that the BOP’s


challenging the location and manner of their detention may proceed
under § 2241. See Adams v. United States, 372 F.3d 132, 135 (2d Cir.
2004) (“In a § 2241 petition a prisoner may seek relief from such things
as . . . the administration of his parole, computation of his sentence by
parole officials, disciplinary actions taken against him, the type of
detention, and prison conditions in the facility where he is
incarcerated.”) (emphasis added); Hernandez v. Campbell, 204 F.3d
861, 864-65 (9th Cir. 2000) (“Generally, motions to contest the legality
of a sentence must be filed under § 2255 . . . while petitions that
challenge the manner, location, or conditions of a sentence's execution
must be brought pursuant to § 2241 . . . .”) (emphasis added). In a case
with facts similar to those presented by Miller, the Sixth Circuit held that
a challenge to a prisoner’s “place of imprisonment” was proper under §
2241, not §2255, because it questioned the way the “sentence was being
executed.” United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991).
          The caselaw is opaque as to the precise meaning of “execution
of sentence.” Given the procedural posture of this case – Miller is about
to be released – we do not have the luxury of explaining in depth its
meaning here. In light of Coady, Eakman, Admans, Hernandez, and
Jalili, we are satisfied that what is challenged here is the execution of
Miller’s sentence. Hence, we find habeas corpus jurisdiction proper.

                                     5
longstanding practice of placing certain prisoners in CCCs for all or long

parts of their sentences was contrary to the BOP’s statutory grant of

authority and that such placements should be limited to a maximum of

ten percent of an offender’s sentence, to be capped at six months.3 On

December 20, 2002, the BOP followed the OLC’s advice and

memorialized it.4

       This appeal turns on the interpretation of two statutes. The BOP

is vested with authority under 18 U.S.C. § 3621(b) to determine the

location of an inmate’s imprisonment:

       (b) Place of imprisonment. The Bureau of Prisons shall
       designate the place of the prisoner’s imprisonment. The
       Bureau may designate any available penal or correctional
       facility that meets minimum standards of health and
       habitability established by the Bureau . . . that the Bureau
       determines to be appropriate and suitable . . . . The
       Bureau may at any time, having regard for the same
       matters, direct the transfer of a prisoner from one penal
       or correctional facility to another.

A more specific provision, 18 U.S.C. § 3624(c), describes the BOP’s

obligation to prepare prisoners for community re-entry by, for example,



         3The 2002 OLC memo considered all community confinement
facilities – including community confinement centers and halfway
houses – as indistinguishable for purposes of this question. We accept
that understanding here.

        4We note our awareness that the BOP has recently revised its
regulations governing CCC placement. Because those regulations
became effective February 14, 2005, after Sichel and Miller’s CCC
determinations were made, they do not govern here, and we express no
opinion about them.

                                    6
placing them in a CCC:

       (c) Pre-release custody. The Bureau of Prisons shall, to
       the extent practicable, assure that a prisoner serving a
       term of imprisonment spends a reasonable part, not to
       exceed six months, of the last 10 per centum of the term
       to be served under conditions that will afford the prisoner
       a reasonable opportunity to adjust to and prepare for the
       prisoner’s re-entry into the community. The authority
       provided by this subsection may be used to place a
       prisoner in home confinement.

       The 2002 memo, which was adopted by the BOP, concluded that

the BOP did not have “general authority” under § 3621 to place an

offender in community confinement from the outset of his sentence or

at any time the BOP chooses. Instead, the memo reasoned that authority

to transfer a prisoner to a CCC is derived solely from § 3624, which

limits residence in a CCC to the lesser of 10 percent of the total sentence

or six months.

       In denying Miller’s petition challenging the BOP policy, the

District Court found that the BOP did indeed have discretion under §

3621(b) to place a prisoner in a CCC at any time. However, the Court

further ruled that § 3624(c) limits that discretion to the last ten percent

of the sentence, not to exceed six months. It upheld the BOP’s

interpretation of § 3624(c) – and therefore Miller’s pre-release date – as

a “permissible construction of the statute.”

                             III. Discussion

       At issue in this appeal is whether the District Court was correct

                                    7
in endorsing the BOP’s interpretation. Specifically, we must decide

whether the BOP may, under § 3624(c), transfer an inmate to a CCC

prior to the last ten percent or six months of his total sentence. While we

have acknowledged the BOP’s interpretation, see United States v.

Eakman, 378 F.3d 294, 301 (3d Cir. 2004), we have not yet considered

its validity in a precedential opinion.

        Both courts of appeals to address the question have rejected the

BOP’s interpretation as inconsistent with the relevant statutory

provisions. See Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004); Goldings

v. Winn, 383 F.3d 17 (1st Cir. 2004). In Elwood, the new BOP policy

limited a prisoner’s placement in a CCC to the last four months of his

sentence. Under the old policy, he would have been eligible for a full six

months. The Eighth Circuit rejected the BOP’s new interpretation,

holding that § 3624(c) was a specific mandate that did not interfere with

the BOP’s general discretion to place Elwood in a CCC. See Elwood,

386 F.3d at 847. Similarly, the First Circuit held that the BOP’s

discretionary authority was not subject to the temporal limitations of §

3624(c). See Goldings, 383 F.3d at 29.5



       5Miller requested that he be placed in a CCC for a total of six
months. He does not argue that the BOP should have considered a
placement of more than six months. We note, however, that the Eighth
and First Circuits held that the BOP has discretion to transfer a prisoner
to a CCC at “any time” during incarceration. Elwood, 386 F.3d at 847;
Goldings, 383 F.3d at 28.

                                    8
       In the view of both the First and Eighth Circuits, the time

constraints of § 3624(c) limit only the affirmative obligation of the BOP,

not the agency’s discretion to place a prisoner in a CCC for a longer

period of time. Miller of course cites Elwood and Goldings for the

proposition that the BOP may transfer prisoners to CCCs at any time

during their incarceration. In contrast, the Government argues that the

current BOP policy is a correct interpretation of the two statutes.

Although it concedes that the BOP has discretion under § 3621(b) to

place an inmate in a CCC at any time during a sentence (Appellee’s Br.

at 20), it interprets § 3624(c) as a limit on the BOP’s general authority:

       [O]ne computes the 10% of the term of imprisonment,
       but no matter how long that 10% period, the statute caps
       pre-release custody at six months. Therefore, prisoners
       serving long sentences may not exceed the six months for
       pre-release custody. Prisoners with shorter sentences, like
       petitioners here, would be limited by the 10%
       calculation.

(Appellee’s Br. at 22)

       We agree with Miller’s interpretation and that of the First and

Eighth Circuits. Section 3621 requires the BOP to designate the location

of a prisoner’s incarceration. It gives the BOP discretion to choose a

“place of imprisonment” from among “any available penal or

correctional facility” that meets applicable standards. No type of facility

is expressly excluded. We believe that if Congress had intended to

exclude CCC placement, it would not have delegated full authority to


                                    9
place a prisoner in any available facility. Because both parties here

concede that a CCC may be a “place of imprisonment,” we assume that

transfer to a CCC is within the BOP’s broad powers under § 3621(b).

The remaining question is whether the language of § 3624(c) to

determine if that statute specifically limits the BOP’s discretion to place

prisoners in a CCC.

         The plain language of § 3624(c) mandates that the BOP “shall”

assure that a prisoner is considered for appropriate pre-release focused

on re-entry. The use of the word “shall” indicates that the statute is

concerned not with constraining the BOP’s placement discretion, but

with imposing an affirmative obligation on the BOP. The Supreme Court

has articulated the mandatory nature of the word “shall.” See Forest

Guardians v. Babbitt, 174 F.3d 1178, 1187 (10th Cir. 1999) (“The

Supreme Court . . . [has] made clear that when a statute uses the word

‘shall,’ Congress has imposed a mandatory duty . . . .”). Recently, the

Court noted the obvious distinction in § 3621 between the use of “may,”

which is permissive, and the use of              “shall,” which creates

“discretionless obligations.” Lopez v. Davis, 531 U.S. 230, 240-41 (U.S.

2001).

         The discretionless obligation imposed by § 3624(c) here reflects

Congress’ desire to ensure that prisoners are given ample time to readjust

to community living before they are fully released. Serving as an


                                    10
alternative to traditional parole, CCCs provide an important

“transitional period.” Bailor v. Salvation Army, 854 F. Supp. 1341, 1364

(N.D. Ind. 1994). While § 3621(b) allows the BOP to consider ordering

a CCC transfer, only § 3624(c) ensures that such a transfer, when

appropriate, will actually take place. Thus, the time constraints in §

3624(c) limit only the obligation of the BOP to consider placing

prisoners in CCCs or similar facilities. They do not limit the agency’s

discretion to place prisoners in such facilities for longer periods of time.

Using this reasoning, the two statutes at issue are easily harmonized.6

                             V. The Remedy

        Summarizing, we hold that under §§ 3621(b) and 3624(c), the

BOP has the discretion to transfer an inmate to a CCC or like facility for

more than ten percent of his sentence, but must, if practicable, transfer

an inmate for a reasonable part of the last ten percent of the sentence, not

to exceed six months. The BOP’s discretion under § 3621(b) is not

subject to the temporal limitations of the BOP’s mandate in § 3624(c).

We will therefore vacate the order of the District Court and remand for

further proceedings consistent with this opinion.



         6As the First and Eighth Circuits point out, the BOP’s obligation
under § 3624(c) is qualified. Elwood, 386 F.3d at 846; Goldings, 383
F.3d at 23. The BOP must assure that a prisoner spends the final portion
of his sentence under applicable pre-release conditions only to the extent
“practicable.” We have no occasion here to construe the import of this
provision.

                                    11
       However, as noted above, Miller is scheduled to be released

shortly, which likely will, if the release transpires, moot the case.

Accordingly, we will order that the mandate shall issue forthwith and

immediately be transmitted to the District Court and to the parties. It

seems unlikely that the District Court will be able to convene a hearing,

much less take judicial action, before Miller’s release date. That is

unfortunate but was, in terms of granting meaningful relief to Miller,

inevitable. Because of the short sentence, the necessity of securing the

views of the Government (the District Court disposed of the case without

soliciting the views of the Government), and the time necessary to study

and opine on these complicated issues, the likelihood of Miller getting

an earlier transfer to a CCC was always minimal. Perhaps this opinion,

albeit styled as non-precedential, will be of value to other panels

considering this oft-recurring question.




                                   12
