Witkowski v. Kallis

Filing 19

ORDER AND OPINION entered by Chief Judge James E. Shadid on 1/9/19. Petitioner Witkowski's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 1 is DENIED. This matter is now terminated. SEE FULL WRITTEN ORDER. (FDS, ilcd)

E-FILED

Wednesday, 09 January, 2019 04:01:51 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
MARK A. WITKOWSKI,
Petitioner,
v.
STEVE KALLIS, Warden,
Respondent.

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Case No. 17-cv-1142

ORDER AND OPINION
Now before the Court is Petitioner Mark A. Witkowski’s (“Petitioner” or “Witkowski”)
Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1). 1 For the reasons set forth
below, Petitioner’s § 2241 Petition is DENIED.
I. BACKGROUND 2
Witkowski is currently on supervised release in the Northern District of Illinois and was
previously incarcerated with the Federal Bureau of Prisons at the Federal Correctional Institution
in Pekin, Illinois. Witkowski was convicted in June 2015 of two counts of Filing a False Claim
Against the United States, in violation of 18 U.S.C. § 287, in relation to a tax fraud scheme in
which he prepared and filed false federal income tax returns made out in the names of actual tax
payers and collected the refunds. The district court sentenced Witkowski on each count to 30
months of imprisonment, to be followed by two years of supervised release; the sentences were
to be served concurrently.

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Citations to documents filed in this case are styled as “Doc. __.”
As dictated by the analogous federal habeas corpus rules for proceedings under 28 U.S.C. § 2254 and § 2255, the
facts recounted here are taken from Respondent’s Response to the Petition, (Doc. 16), unless otherwise noted. See
28 U.S.C. § 2248.

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Witkowski began serving his sentence on approximately July 28, 2015. Around October
2016, the Bureau of Prisons’ Residential Reentry Management Office received a referral from
FCI Pekin recommending that Witkowski receive 151 to 180 days of residential reentry center
(“RRC”) placement. The referral indicated that Witkowski would release to Chicago, Illinois,
which was where he had been sentenced, and further noted that the Northern District of Illinois
would provide supervision upon his release. The referral also stated that Witkowski would
eventually be attempting to relocate to the Rockford, Illinois, area to reconnect with his children
and requested “up to six months RRC in Janesville, Wisconsin,” which is located in the Western
District of Wisconsin. The referral noted alleged alcohol issues and that Witkowski was
presently receiving treatment. That same month, Witkowski signed a supervised release plan
that similarly noted that BOP was requesting up to six months placement in an RRC in
Janesville, Wisconsin, and noted the planned Rockford relocation. His supervised release plan
also stated that he did not have a release residence. This signed plan, with other documents, was
transmitted to the Residential Reentry Management Office. The referral and supervised release
plan noted that Witkowski had little family support and further acknowledged that he had no
present job prospects.
Witkowski was subsequently approved for a 157-day placement at the Salvation Army
RRC in Chicago. Per the Residential Reentry Management Office’s review, there is no
indication in the file that Witkowski later requested a transfer to Wisconsin. Witkowski
administratively appealed this decision, arguing that he should be placed in RRC for the
maximum 12 months. His appeals were denied.
On April 26, 2017, Witkowski transferred from FCI Pekin to the RRC in Chicago. On
July 3, 2017, Witkowski was placed on home confinement through the BOP. On September 29,

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2017, Witkowski was released from BOP custody, having earned 117 days of good time credit
toward his sentence. At that time, Witkowski began serving his concurrent two-year terms of
supervised release. These terms of supervised release did not include a period of time on home
confinement.
In April 2017, shortly before his transfer to the Chicago RRC, Witkowski filed this
Petition for Habeas Corpus pursuant to 28 U.S.C. § 2241. In this Petition, Witkowski argues that
he should have received a 12-month placement in a RRC prior to being released. Pet. at pp. 6-7
(Doc. 1). He argues that by completing the Non-Residential Drug Abuse Program in October
2016, the BOP was contractually obligated to give him 12 months in a RRC facility. Id. He also
argues that his Case Manager willfully and wantonly delayed his RRC assessment meeting, that
BOP staff abused their discretionary authority and his due process rights by constraining
resources of the Janesville, RRC. Id. at pp. 7-8. Finally, he argues that BOP staff maliciously
misrepresented his history such that his unique reentry needs and deficits—specifically his
homelessness—were not taken into account in the RRC decision. Id. at pp. 9.
In October 2017, the Court ordered Respondent to respond to the Petition. (Doc. 4).
Respondent filed a Motion to Dismiss the Petition (Doc. 5), arguing the Petition was moot
because Witkowski had already been released from prison. The Court granted the motion to
dismiss in November 2017 (Doc. 8). However, Witkowski moved to set aside the dismissal
because he had not received a copy of Respondent’s motion to dismiss (Doc. 10). The Court
granted Witkowski’s motion and Witkowski filed an objection to Respondent’s motion to
dismiss in January 2018 (Doc. 11). In August 2018, the Court denied Respondent’s motion to
dismiss and ordered Respondent to respond to Witkowski’s motion (Doc. 12).

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Respondent has filed his response (Doc. 16). Witkowski has not filed a timely reply.
This order follows.
II. DISCUSSION
A. Witkowski’s Release from Prison Does Not Render his Claim Moot.
Respondent again argues Witkowski’s claims are moot due to the fact that Witkowski is
no longer in BOP custody and is currently serving a term of supervised release. However, as
noted in this Court’s August 13, 2018 Order (Doc. 12), the Court can only deem the Petition in
this case moot if it is “confident” the Petitioner “cannot benefit” from a favorable decision. Pope
v. Perdue, 889 F.3d 410, 415 (7th Cir. 2018), reh’g denied (July 30, 2018) (citing United States
v. Trotter, 270 F. 3d 1150, 1152 (7th Cir. 2001)). In Pope, the Seventh Circuit held that because
a finding that the petitioner spent too long in prison would “carry great weight in a § 3583(e)
motion to reduce” the term of supervised release, the case was not yet moot. Respondent argues
that a finding that Witkowski should have spent more time an RRC would not carry great weight
in a § 3583(e) motion to reduce his term of supervised release, making Witkowski’s case
substantially weaker than the case in Pope. Resp. at pp. 14-16 (Doc. 16). However, while such a
finding would not carry as much weight as a finding that he spent too long in prison, it would
certainly carry at least some weight. Given the high hurdle of proving mootness and the Seventh
Circuit’s holding in Pope, the Court finds that there is still a sufficient potential benefit to keep
the case alive.
B. This Court’s Jurisdiction Over Witkowski’s Claims is Unclear.
As this Court has previously noted, there is some disagreement among the courts in the
Seventh Circuit as to whether a habeas corpus petition is the proper vehicle to make a claim
regarding halfway house designations. See Perry v. Krueger, No. 15-1298, 2015 WL 6500915,

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at *1 (C.D. Ill. Oct. 27, 2015) (collecting cases). Even assuming a habeas corpus petition is the
proper vehicle, Respondent argues that the Court no longer has jurisdiction over this case
because the proper respondent is not within this Court’s territorial jurisdiction after Witkowski’s
transfer out of prison. District courts may grant writs of habeas corpus “within their respective
jurisdictions,” 28 U.S.C. § 2241(a), and such writs “shall be directed to the person having
custody of the person detained.” 28 U.S.C. § 2243. In a conventional habeas action challenging
physical confinement, “there is generally only one proper respondent”—the “person who has
the immediate custody of the party detained, with the power to produce the body of such party
before the court or judge.” Rumsfeld v. Padilla, 542 U.S. 426, 434–35, 124 S.Ct. 2711 (2004).
Since “the court issuing the writ [must] have jurisdiction over the custodian,” generally in
“habeas petitions challenging present physical confinement, jurisdiction lies in only one district:
the district of confinement.” Id. at 442–43 (quotation omitted). However, jurisdiction in a
habeas action is determined at the time an action is filed and the Seventh Circuit has previously
held that jurisdiction is not lost when a prisoner is transferred. See Ross v. Mebane, 536 F.2d
1199, 1201 (7th Cir. 1976); United States ex rel. Circella v. Sahli, 216 F.2d 33, 37 (7th Cir.
1954), cert. denied, 348 U.S. 964 (1955); Coburn v. Reno, No. 98 C 1453, 1999 WL 138808, at
*2 (N.D. Ill. Mar. 5, 1999) (“It is well established that jurisdiction attaches on the initial filing
for habeas corpus relief, and this jurisdiction, once established, is not destroyed by a transfer of
the petitioner and the accompanying custodial change.”).
However, in Rumsfeld, the Supreme Court stated in dicta that “when the Government
moves a habeas petitioner after she properly files a petition naming her immediate custodian, the
District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction
who has legal authority to effectuate the prisoner’s release.” Rumsfeld, 542 U.S. at 441

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(emphasis added). Courts interpreting this language have been split on whether jurisdiction is
lost when a prisoner is transferred to a custodian outside of the court’s territorial jurisdiction
after a petition is properly filed. See, e.g., Warren v. United States of Am., Inc., No. CA 3:101245-MBS-JRM, 2011 WL 4435655, at *4 (D.S.C. Sept. 23, 2011) (compiling cases). See also
Mitchell v. Bledsoe, No. 06-624-DRH, 2009 WL 3156689, at *1 (S.D. Ill. Sept. 28, 2009) (“a
district court can be divested of jurisdiction if a petitioner is transferred and the new custodian is
found outside the district.”).
While the Seventh Circuit has not readdressed this issue post-Rumsfled, all Courts of
Appeals that have considered the issue have continued to find that a prisoner’s transfer does not
result in the district court losing jurisdiction. See Griffin v. Ebbert, 751 F.3d 288, 290 (5th Cir.
2014) (“Jurisdiction attached on that initial filing for habeas corpus relief, and it was not
destroyed by the transfer of petitioner and accompanying custodial change.”); Mujahid v.
Daniels, 413 F.3d 991, 994 (9th Cir. 2005) (same); Pinson v. Berkebile, 604 F. App'x 649, 652–
53 (10th Cir. 2015) (unpublished) (finding that, while after a prison transfer petitioner’s
“immediate physical custodian is no longer within the district court's jurisdiction,” the “transfer
does not defeat that initial jurisdiction”). As is the case here, the petitioner in Mujahid initially
filed a proper habeas petition in the district court where he was being held and was subsequently
transferred and placed in supervised release. Mujahid, 413 F.3d at 994. Since “a habeas
petitioner remains in the custody of the United States while on supervised release” the Ninth
Circuit held that jurisdiction was not destroyed by this custodian change. Id. Indeed, given the
frequent transfer of prisoners in federal custody, any other rule would have the potential for
forum games and unreasonable delays in a petitioner’s case. See Griffin 751 F.3d at 290.
However, the Court need not conclusively rule on these jurisdictional issues to resolve this case.

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Even assuming that Witkowski may proceed under § 2241 and that the Court had and continues
to have jurisdiction to consider his petition, he is still not entitled to the relief sought.
C. Witkowski’s Claims Fail on the Merits.
Under the Second Chance Act, 18 U.S.C. § 3624(c), the BOP has the authority to place
inmates in community confinement facilities during the final portion of their sentences for up to
12 months. Specifically:
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 reentry of that prisoner
into the community. Such conditions may include a community correctional
facility.
Id. The language of the statute clearly establishes that inmates are not entitled to the full 12
months of placement in a halfway house. Section 3624(c) requires only that “to the extent
practicable,” the BOP must allow an inmate to spend “a portion of the final months” of his term
under conditions that will allow him to prepare and adjust for reentry into the community. Id.
The language is discretionary, and there is simply no guarantee to placement for the maximum
amount of time available. See also, Olim v. Waukinekona, 461 U.S. 238, 245 (1983) (holding
that a prisoner has no constitutional right to select a particular correctional facility for his
placement or to be transferred to a different facility upon request).
The amount of time to be allocated to each inmate is left to the considerable discretion of
the BOP. Pence v. Holinka, No. 09-cv-489-SLC, 2009 WL 3241874, at *1 (W.D.Wis. Sept. 29,
2009) (citing Sessel v. Outlaw, No. 08-cv-00212, 2009 WL 1850331, at *4 (E.D.Ark. 2009);
Daraio v. Lappin, No. 3:08-cv-1812- MRK, 2009 WL 303995 (D.Conn. Feb. 9, 2009) (BOP
retains discretion under the Second Chance Act to decide whether and when an inmate should be
placed in a halfway house.)). In exercising this discretion, the BOP must make decisions on an
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individual basis considering the factors listed in 18 U.S.C. § 3621(b) in an effort to “ensure that
placement in a community correctional facility . . . is . . . of sufficient duration to provide the
greatest likelihood of successful reintegration into the community.” 18 U.S.C. § 3624(c)(6).
Factors to be considered are: (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 concerning the purposes for which the sentence was
determined to be warranted or recommending a specific type of facility; and (5) any pertinent
policy statement issued by the Sentencing Commission. 18 U.S.C. § 3621(b). These statutory
provisions are echoed in the BOP’s promulgated rules set forth at 28 CFR §§ 570.20–21.
In considering Witkowski’s eligibility for community confinement placement, the record
reveals FCI-Pekin’s institutional referral recommended 151-180 days placement in an RRC.
This recommendation was reviewed by the Residential Reentry Management (RRM) Office to
determine Witkowski’s exact RRC placement. The RRM Office considered the applicable
factors and determined that 157 days would be appropriate. This decision noted Witkowski’s
relatively short prison sentence, his lack of history of drug and alcohol abuse, and his lack of
mental health concerns. The decision also noted Witkowski’s planned eventual release to the
Northern District of Illinois for his supervised release. Finally, the supervised release plan noted
that he had little family support and no present job prospects. And, contrary to Witkowski’s
claim that his homelessness was not considered, the plan noted that he did not have a residence.
Witkowski also argues that, in addition to the considerations of the statute, the BOP is
“contractually” obligated to grant prisoners 12 months in a halfway upon completion of the nonresidential drug abuse program (NR-DAP). However, Witkowski simply appears to be mistaken
about the nature of BOP Program Statement 5330.11 and has not provided any support for his

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notion that there was a contract or that it was violated. Further, even if there was a violation of
the BOP’s program statement, this “is not a violation of federal law” that this Court can review
in a habeas claim. See Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011).
For these reasons, the record supports the conclusion that the BOP followed the
provisions of the statute and considered the relevant factors in making its assessment. “If the
[BOP] considers the relevant factors in making its determination, a challenge ... could not
succeed unless the plaintiff could show that the decision was arbitrary, capricious, or otherwise
an abuse of discretion, a difficult standard for the plaintiff to meet.” Woods v. Wilson, No. 09CV-0749, 2009 WL 2579241, at *2 (N.D. Ill. Aug. 19, 2009) (citing Tristano v. Fed. Bureau of
Prisons, No. 07-C-113-C, 2008 WL 3852699, at *1 (W.D. Wis. May 15, 2008)).
It is not the role of this Court to conduct an independent review of the § 3621(b) factors
and make a de novo determination as to Witkowski’s placement in a halfway house. Rather, the
BOP’s decision is entitled to deference so long as it is not arbitrary, lacking any rational basis, or
otherwise contrary to the requirements of the statute. Witkowski has not shown that the BOP’s
decision in his case implicates any of these concerns, and his disagreement with the outcome is
insufficient.
Witkowski’s final argument is that the BOP unreasonably delayed his RRC assessment.
While, again, this claim is almost certainly not reviewable in habeas, this Court finds that any
delay was harmless. Pursuant to the BOP’s April 14, 2008 Memorandum, each inmate’s prerelease placement review is to take place somewhere between 17 and 19 months before the
inmate’s release. The record is unclear as to whether the review was conducted within the
BOP’s stated timeframe, but Witkowski has failed to show that there was any harm even if there
was a delay. The BOP staff still conducted Witkowski’s assessment at least by September 2016,

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early enough to have been able to recommend Witkowski for up to 12 months of placement in a
RRC, but instead recommended he be placed in an RRC for only 151-180 days. This Court can
discern no reason why earlier consideration of the § 3621(b) factors would have changed that
result and Witkowski does not present one. See Ewing v. Carter, No. 2:13-CV-56, 2014 WL
1516332, at *6 (N.D.W. Va. Apr. 17, 2014), aff'd, 583 F. App’x 278 (4th Cir. 2014). Moreover,
his argument that he is entitled to 12 months of RRC placement is based on his completion of the
NR-DAP program, which he did not complete until after the September assessment. His request
for relief pursuant to § 2241 must therefore be denied.
III. CONCLUSION
For the reasons set forth above, Petitioner Witkowski’s Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241 (Doc. 1) is DENIED. This matter is now terminated.
Signed on this 9th day of January 2019.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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