Sparks v. Chester

Filing 8

MEMORANDUM AND ORDER: The petition is dismissed and all relief is denied. The court further denies petitioner leave to proceed in forma pauperis on appeal (see Order for details). Signed by District Judge Julie A. Robinson on 5/3/2013. ( Mailed to pro se party Jason Sparks by regular mail.) (bt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JASON SPARKS,
Petitioner,
v.

CASE NO. 11-3025-RDR

C. CHESTER,
Respondent.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed pursuant to
28 U.S.C. § 2241. Petitioner, a federal prisoner, alleges he was
improperly denied prerelease placement in a Residential Reentry
Center (RRC).
Factual background
Petitioner is incarcerated under a 150-month aggregate sentence
imposed in the U.S. District Court for the District of Nevada. His
projected release date is December 23, 2016.
Petitioner has been evaluated for RRC placement. In August 2010,
his placement at Leavenworth was found to be appropriate, in view of
his custody needs, programming needs, institutional history, and
recommendation of the sentencing court.
In February 2011, his Unit Team found no basis for transfer to
a lower security facility. In March 2011, the Unit Team completed a
detailed RRC review and determined that there was no basis for an
immediate transfer to an RRC, noting that a 180-day period of RRC
placement should be adequate for petitioner to transition into
society. (Doc. 7, Attach. 2, Ex. G.)

Discussion
A district court may issue the writ of habeas corpus only when
the petitioner is “in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A federal
prisoner may pursue habeas corpus relief under § 2241 to challenge
the execution of a sentence. See Davis v. Roberts, 425 F.3d 830, 833
(10th Cir. 2005).
Where a prisoner challenges the period of time he may be allowed
placement in an RRC, the appropriate relief is an order directing the
BOP to undertake the individualized review required by law. See
Wedelstedt v. Wiley, 477 F.3d 1160, 1168 (10th Cir. 2007)(affirming
grant of habeas corpus relief and requiring BOP to consider factors
in 18 U.S.C. § 3621(b) to evaluate possible transfer to RRC).
Legal framework
The legal authority for RRC placement of federal prisoners was
outlined by the Tenth Circuit as follows:
Before 2008, § 3624(c) limited the time for which an inmate
could be eligible for such transfer to the final six months
or ten percent of his sentence, whichever was less. 18
U.S.C. § 3624(c)(2000). The Second Chance Act of 2007,
Pub.L. No. 110-199, § 251, 122 Stat. 657, 692 (2008),
amended the statute to provide for the current eligibility
time frame of twelve months.
Prior to that amendment, BOP had utilized a categorical
approach to community confinement requests: it would only
designate inmates to RRC facilities during the last ten
percent of the sentence being served so long as that period
did not exceed six months. See Community Confinement, 70
Fed. Reg. 1659, 1659 (January 10, 2005)(codified at 28
C.F.R. pt. 570 (2005))(finalizing rules regarding
categorical exercise of discretion for designating inmates
to community confinement); see also Community Confinement,
69 Fed. Reg. 51,213, 51,213-14 (Aug. 18, 2004)(proposed
categorical rules); Wedelstedt v. Wiley, 477 F.3d 1160,
1162-63 (10th Cir. 2007)(discussing regulations codifying

categorical approach); Woodall, 432 F.3d at 239-41 (same).
In Wedelstedt, we invalidated BOP’s categorical approach,
holding that BOP’s “categorical refusal to consider the
five statutory factors [set forth by 18 U.S.C. § 3621(b)]1
is in direct conflict with the clear congressional command
that the factors be considered if a transfer is sought or
recommended.” 477 F.3d at 1167.
After the eligibility period for community confinement in
18 U.S.C. § 3624(c) was expanded to twelve months, BOP
issued an interim rule, revising its regulations to reflect
that expansion. See Pre-Release Community Confinement, 73
Fed.Reg. 62,440, 62,443 (Oct. 21, 2008)(codified at 28
C.F.R. § 570.21(a)(2009))(interim rule revising BOP
regulations to conform with the Second Chance Act of 2007).
BOP subsequently issued two memoranda providing guidance
to its staff regarding the proper implementation of the
amended statutes while BOP was undergoing formal rulemaking
to revise more permanently its regulations. The first
memorandum, issued on April 14, 2008, addressed the
statutory changes following the Second Chance Act of 2007,
emphasizing that the pre-release time frame for RRC and CCC
had been increased to twelve months and that there was no
percentage limitation on time to be served. Additionally,
the memorandum instructed staff that they must make
prerelease placement decisions “on an individual basis in
every inmate’s case” and the “the Bureau’s categorical
timeframe
limitations
on
pre-release
community
confinement… are no longer applicable and must no longer
be followed.” R. at 65; see also id. at 67 (“Bureau staff
must approach every individual inmate’s assessment with the
understanding that he/she is now eligible for a maximum of
12 months pre-release RRC placement.”) Staff were
instructed to review inmates for pre-release placements at
an earlier time, e.g., seventeen to nineteen months before
their projected release dates, and to consider pre-release
inmates on an individual basis using the five factors from
18 U.S.C. § 3621(b).
The second BOP memorandum, issued on November 14, 2008,
addressed inmate requests for transfer to RRCs when more
than twelve months remained from their projected release
date (that is, non-prerelease inmates) In relevant part,
the memorandum instructed staff that they could not
1
The five factors enumerated in § 3621(b) are: (1)the resources of the facility
contemplated; (2) the nature and circumstances of the prisoner’s criminal offense;
(3) the history and characteristics of the prisoner, (4) any statement by the
sentencing court concerning the purposes of the sentence or the type of facility
for incarceration; and (5) any relevant policy statement issued by the Sentencing
Commission.

automatically deny a non-pre-release inmate’s request for
pre-release transfer, but must give each request
individualized consideration. Id. at 74-75. (“In other
words, staff cannot say that an inmate, whatever the
circumstances, is automatically ineligible for transfer to
a RRC. Rather, staff must first review the inmate’s request
on its individual merits….”). However, if an inmate were
to request transfer prior to the pre-release time frame of
twelve months, although staff must individually consider
the request, they were instructed that there was “no need”
to perform immediately the statutorily prescribed
individualized review. Id. at 75. Rather, the inmate should
be informed that the request would be fully reviewed in
conjunction with the next scheduled Program Review. Staff
were cautioned that they should not inform the inmate that
he or she was ineligible for transfer because “[t]elling
an inmate that he/she is ineligible for RRC placement is
the same as automatically denying the inmate from even being
considered for such placement, and is not in accord with
Bureau Policy.” Id. The second memorandum also stated that
“[a]n RRC placement beyond six months should only occur when
there
are
unusual
or
extraordinary
circumstances
justifying such placement and the Regional Director
concurs.” Id. at 76. Garza v. Davis, 596 F.3d 1198, 1202-03
(10th Cir. 2010).

The materials submitted to the court show the petitioner has been
reviewed on several occasions. At a program review conducted on August
6, 2010, he sought immediate placement in an RRC for the remainder
of his sentence. This request was rejected with a notation that no
compelling basis for an extended RRC placement was identified. (Doc.
7, Ex. E., p. 82, Program Review).
At petitioner’s February 7, 2011, Program Review, staff noted
his request for a furlough transfer to Federal Prison Camp-Terre
Haute, but denied that request.
On March 3, 2011, staff conducted a formal Review for RRC
placement which specifically addressed the five factors identified

in § 3621(b). The Unit Team recommended placement of 180 days in an
RRC. (Ex. G, pp. 98-100.)
The Bureau of Prisons has relatively broad discretion in
determining the place a federal prisoner serves a sentence. Under
§3621(b), the BOP is permitted to “designate any available penal or
correctional facility…that [it] determines to be appropriate and
suitable.” In exercising its discretion under the Second Chance Act,
the BOP has the authority to place a prisoner in an RRC for up to 12
months, but § 3624(c) mandates only that “to the extent practicable”
a prisoner be allowed to serve “a portion of the final months” of
incarceration in such a setting. The decision concerning an RRC
placement is to be made on an individual basis, in a manner consistent
with § 3621 to promote “the greatest likelihood of successful
reintegration into the community.” 28 C.F.R. § 570.22.
Thus, the Second Chance Act allows the BOP to exercise its
discretion in determining the length of time a prisoner spends in an
RRC setting even though the SCA extended the time for such a placement
to 12 months from 6. See Bun v. Wiley, 351 Fed. App’x 267, 268 (10th
Cir. 2009)(unpublished)(the SCA does not entitle a prisoner to 12
months in an RRC).
The record clearly shows both that the BOP applied the five
factors identified in § 3621(b) in the RRC evaluation conducted in
March 2011, and that the program reviews gave detailed, individualized
consideration to petitioner’s progress on identified objectives.
Having examined the record, the court finds no abuse of discretion

in the decision that a 180-day placement in an RRC setting was
sufficient in petitioner’s case.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is dismissed and all relief is denied.
IT IS FURTHER ORDERED the court certifies, pursuant to 28 U.S.C.
§ 1915(a)(3), that an appeal from this order would not be taken in
good faith and therefore denies petitioner leave to proceed in forma
pauperis on appeal. If petitioner files a notice of appeal, he must
also pay the full $455.00 appellate filing fee or file a motion to
proceed in forma pauperis in the United States Court of Appeals for
the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.

Dated: May 3, 2013

s/

Julie A. Robinson

United States District Judge