Cucu v. Terris

Filing 10

OPINION AND ORDER Denying 3 Motion for Preliminary Injunction; Granting in Part and Denying in Part 5 Motion to Expedite; Denying 6 Motion for Discovery; Denying 1 PETITION for Writ of Habeas Corpus and Granting Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ALEXANDER CUCU,
Petitioner,
CASE NO. 17-13646
HONORABLE SEAN F. COX

v.
J.A. TERRIS,
Respondent.
______________________________/

OPINION AND ORDER
DENYING THE EMERGENCY MOTION
FOR PRELIMINARY INJUNCTIVE RELIEF [3],
GRANTING IN PART AND DENYING IN PART
THE MOTION TO EXPEDITE REVIEW [5],
DENYING THE MOTION FOR DISCOVERY [6],
DENYING THE HABEAS CORPUS PETITION [1], AND
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Alexander Cucu, an inmate at the Federal Correctional Institution in Milan,
Michigan (FCI-Milan), has filed a pro se petition for the writ of habeas corpus under 28 U.S.C. §
2241. Petitioner challenges an administrative decision by employees of the Federal Bureau of
Prisons (BOP) to reduce the amount of time that Petitioner spends in a community corrections
center (CCC) or residential re-entry center (RRC) before his mandatory release from federal
custody.1

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As explained in Garza v. Davis, 596 F.3d 1198 (10th Cir. 2010),
RRCs and CCCs are two words used to describe the same animal—“residence in
a community treatment center, halfway house, restitution center, mental health
facility, alcohol or drug rehabilitation center, or other community correctional
facility (including residential re-entry centers); and participation in gainful
employment, employment search efforts, community service, vocational training,
treatment, educational programs, or similar facility-approved programs during
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Also pending before the Court are Petitioner’s motions for a preliminary injunction, to
expedite review of this case, and for leave to conduct discovery. Respondent J.A. Terris urges
the Court to deny the petition on the basis that Petitioner has no right to placement in an RRC for
any specific period of time. The Court agrees with Respondent. Accordingly, the habeas
petition is denied. The motion for a preliminary injunction and for leave to conduct discovery
are denied as moot. The motion to expedite review is granted in part and denied in part.
I. Background
Petitioner pleaded guilty in the United States District Court for the Northern District of
Ohio to filing a false tax return. See 26 U.S.C. § 7206(1). On January 8, 2015, the federal trial
court sentenced Petitioner to eighteen months in prison, followed by one year of supervised
release. Petitioner did not appeal his conviction, and on April 14, 2016, he was released from
custody. He subsequently violated the terms of his supervised release and was returned to prison
in May of 2017 for a term of eleven months.
In June of 2017, Petitioner’s unit team at FCI-Milan recommended that Petitioner be
placed in an RRC for one to ninety days pursuant to the Second Chance Act, 18 U.S.C. §
3624(c). The date for Petitioner’s transfer to an RRC was set for December 27, 2017. On
August 18, 2017, however, the ninety days in an RRC was reduced to thirty-four days, and the
date for Petitioner’s transfer to an RRC was postponed to February 23, 2018.

non-residential hours.” 28 C.F.R. § 570.20(a). BOP has chosen to refer only to
RRCs “to provide ‘a clearer description of the programs and services being
offered’ in such facilities.” R. at 76 n. 3 (Mem., dated Nov. 14, 2008).
Id. at 1201 n.2. Consistent with the BOP’s practice, this Court will refer to community treatment
centers as RRCs.

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Petitioner challenged the delay in transferring him to an RRC by seeking informal
resolution of the issue, but his request was denied. He then pursued administrative remedies
with respondent Terris, who denied relief.
On November 8, 2017, Petitioner filed his habeas corpus petition. He claims that the
BOP’s decision to reduce his time in an RRC violates his right to due process, as well as, the
letter and spirit of the Second Chance Act and the related federal regulation. He seeks to have
the Court (1) declare that the BOP’s actions are unlawful and unconstitutional as applied to him
and (2) order Respondent and the BOP to comply with their statutory obligations under the
Second Chance Act by granting him ninety days in an RRC.
In his emergency motion for preliminary injunctive relief, Petitioner seeks reinstatement
of the BOP’s original decision to place him in an RRC for ninety days. In his motion to
expedite, Petitioner asks the Court to shorten the deadline for Respondent’s answer to the habeas
petition and then expedite review of his petition. Finally, in his motion for leave to conduct
discovery, Petitioner seeks copies of the BOP’s memoranda, e-mails, and documents regarding
the Second Chance Act, RRCs and home confinement, and the reduction of time spent in RRCs.
II. Discussion
A. Exhaustion of Administrative Remedies
A preliminary question is whether Petitioner exhausted administrative remedies for his
claims and, if not, whether he should be permitted to proceed without first exhausting
administrative remedies. Federal prisoners ordinarily must exhaust administrative remedies for
their claims before filing a § 2241 habeas corpus petition. Luedtke v. Berkebile, 704 F.3d 465,
466 (6th Cir. 2013) (citing Fazzini v. Northeast Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir.
2006)). The Federal Bureau of Prisons has an administrative-remedy program which “allow[s]

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an inmate to seek formal review of an issue relating to any aspect of his/her confinement.” 28
C.F.R. § 542.10(a).
The Bureau’s regulatory regime for prisoner grievances consists of four tiers: (1)
seeking informal resolution with a staff member; (2) submitting a grievance to the
Warden on a “BP–9” form; (3) appealing to the Regional Director on a “BP–10”
form within 20 days of the date the Warden signed the response to the grievance;
and (4) appealing to the General Counsel of the Central Office on a “BP–11” form
within 30 days of the date the Regional Director signed the response to the appeal.
Id. §§ 542.13–15.
Risher v. Lappin, 639 F.3d 236, 238-39 (6th Cir. 2011). The exhaustion requirement generally is
required as a matter of preventing premature interference with agency processes,
so that the agency may function efficiently and so that it may have an opportunity
to correct its own errors, to afford the parties and the courts the benefit of its
experience and expertise, and to compile a record which is adequate for judicial
review.
Weinberger v. Salfi, 422 U.S. 749, 765 (1975). Nevertheless, “§ 2241’s exhaustion requirement
is not statutorily required,” and “a prisoner’s failure to exhaust available state or administrative
remedies may be excused where pursuing such remedies would be futile” or ineffective. Fazzini,
473 F.3d at 235-36.
Petitioner concedes that he did not exhaust administrative remedies before filing his
petition. He has completed step one of the administrative remedy procedure, but he did not
perfect an appeal from Respondent’s decision at steps two and three of the administrative remedy
procedure before he filed his habeas petition.
Respondent, however, has not asked the Court to dismiss the petition for failure to
exhaust administrative remedies, and Petitioner contends that it would be futile to exhaust his
administrative remedies because the BOP has predetermined the issue he raises. Petitioner also
contends that forcing him to complete the administrative remedy procedure would prejudice him
because he will be released from custody before he can exhaust his remedies. Under the

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circumstances, the Court believes the best approach is to excuse Petitioner’s failure to exhaust
administrative remedies. Accordingly, the Court proceeds to address the merits of Petitioner’s
claims.
B. The Merits
1. Legal Framework
Habeas petitioners are entitled to relief only if they are “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a)(3). On review of an
agency’s actions, a reviewing court must
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to
be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
5 U.S.C. § 706(1) and (2) (A) and (B).
2. Analysis
Petitioner contends that the BOP violated his constitutional right to due process of law
when it reduced the time he spends in an RRC from ninety days to slightly more than thirty days.
He purports to have a liberty interest in being transferred to an RRC, and he contends that the
BOP is violating the letter and spirit of the Second Chance Act by insufficiently funding and
underutilizing RRCs.
The Due Process Clause of the Fifth Amendment states that “[n]o person shall . . . be
deprived of life, liberty, or property, without due process of law.” U.S. Const., amend. V. To
determine whether the BOP is depriving Petitioner of due process, the Court must determine first
whether Petitioner has a protected liberty interest in being transferred to an RRC for a specific
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period of time. Protected liberty interests are created by “the use of ‘explicitly mandatory
language,’ in connection with the establishment of ‘specified substantive predicates’ to limit
discretion.” Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 463 (1989) (quoting Hewitt v.
Helms, 459 U.S. 460, 472 (1983)). “[A]n individual claiming a protected interest must have a
legitimate claim of entitlement to it,” id. at 460, and “[t]he entitlement to a benefit must be
grounded in some statute, rule, or policy.” Hughlett v. Romer-Sensky, 497 F.3d 557, 567 (6th
Cir. 2006).
The statute in question here provides that
[t]he 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.
18 U.S.C. § 3624(c)(1). The BOP must
issue regulations . . . which shall ensure that placement in a community
correctional facility by the Bureau of Prisons is-(A) conducted in a manner consistent with section 3621(b) of this title;
(B) determined on an individual basis; and
(C) of sufficient duration to provide the greatest likelihood of successful
reintegration into the community.
18 U.S.C. § 3624(c)(6).2
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18 U.S.C. § 3621(b) provides:
(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, whether maintained by the Federal Government or
otherwise and whether within or without the judicial district in which the person
was convicted, that the Bureau determines to be appropriate and suitable,
considering-6

The related regulations state that:
[i]nmates may be designated to community confinement as a condition of prerelease custody and programming during the final months of the inmate’s term of
imprisonment, not to exceed twelve months.
28 C.F.R. § 570.21(a); and
[i]nmates will be considered for pre-release community confinement in a manner
consistent with 18 U.S.C. section 3621(b), determined on an individual basis, and
of sufficient duration to provide the greatest likelihood of successful reintegration
into the community, within the time-frames set forth in this part.
28 C.F.R. § 570.22.
Viewed together, the statute and regulations require the BOP to consider placing an
inmate in an RRC during a portion of the inmate’s last months of a sentence. But the statute and
regulations fall short of requiring the BOP to actually place an inmate in an RRC.
As evidenced by the phrase “to the extent practicable” and the employment of
“individual basis” review of eligibility provided in the regulations, the BOP has
discretion whether to grant the benefits. See 28 C.F.R. § 570.22. Consequently,
there is no right conferred here.
Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012) (per curiam); see also
Lovett v. Hogsten, No. 09-5605, 2009 WL 5851205 at *1 and *2 (6th Cir. Dec. 29, 2009)
(unpublished decision stating that “the decision to place an inmate in pre-release community
(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 pursuant to section 994(a)(2) of title 28. . . .

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confinement is discretionary” and that “the Second Chance Act does not guarantee a one-year
RRC placement, but only directs the Bureau of Prisons to consider placing an inmate in a RRC
for up to the final twelve months of his or her sentence”) (emphasis omitted).
“Courts consistently have held that § 3624(c) does not create a protected liberty interest,
and thus does not guarantee placement into community confinement for any federal prisoner.”
Pollard v. Sherrod, No. 10-cv-143-DRH, 2010 WL 3184366, at *1 (S.D. Ill. Aug. 10, 2010)
(unpublished). This conclusion is supported by Supreme Court decisions which hold that “[t]here
is no constitutional or inherent right of a convicted person to be conditionally released before the
expiration of a valid sentence,” Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442
U.S. 1, 7 (1979), or confined in any particular correctional facility. Olim v. Wakinekona, 461
U.S. 238, 245-46 (1983). Similarly, no due process protections are required for “prisoner
classification and eligibility for rehabilitative programs in the federal system.”

Moody v.

Daggett, 429 U.S. 78, 88 n.9 (1976). “Congress has given federal prison officials full discretion
to control these conditions of confinement,” and prisoners have “no legitimate statutory or
constitutional entitlement sufficient to invoke due process.” Id. “As long as the conditions or
degree of confinement to which the prisoner is subjected is within the sentence imposed upon
him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself
subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v. Haymes,
427 U.S. 236, 242 (1976).
The Court concludes that the statute and regulations in question here do not establish a
liberty interest in being transferred to an RRC. Accordingly, Petitioner “enjoys no statutory or
constitutionally protected right, or entitlement, to transfer to a RRC or to home confinement.”
Heard v. Quintana, 184 F. Supp. 3d 515, 521 (E.D. Ky. 2016) (emphasis omitted). Even if there

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were a protected liberty interest in being sent to an RRC, there is no right to placement in an
RRC for a specific period of time, and “[w]here an interest is not a protected one, there is no
cognizable harm to the individual when deprived of that interest.” Orr v. Hawk, 156 F.3d 651,
654 (6th Cir. 1998). Thus, Petitioner is not entitled to the protections of the Due Process Clause.
Petitioner nevertheless contends that the BOP has violated the letter and spirit of the
Second Chance Act by reducing its funding for RRCs. He contends that the statutory language is
mandatory and that the BOP cannot circumvent Congressional intent by re-directing or
misappropriating funds intended for community treatment programs. He notes that the statute
does not mention an exception to implementation for a lack of appropriations.
Although the Court is sympathetic to Petitioner’s argument, the BOP reduced the amount
of time that Petitioner will spend in an RRC due to a lack of bed space and community resources.
See Response to Pet. for Writ of Habeas Corpus, Exs. 4 and 5 (docket no. 8-5, Page ID 52, 55,
58, and 60). This was a legitimate basis for delaying Petitioner’s transfer to an RRC. See 28
U.S.C. § 3621(b)(1) (stating that the BOP may designate any available penal or correctional
facility that the BOP determines to be appropriate and suitable, considering “the resources of the
facility contemplated”). Thus, Petitioner’s argument about the BOP’s alleged reduction or
misuse of funds intended for community corrections is not a basis for habeas relief.
III. Conclusion and Order
Petitioner has failed to show that he is in custody in violation of federal law.
Furthermore, the BOP’s actions in this case were not arbitrary, capricious, an abuse of discretion,
or unlawful. Accordingly, the Court denies the petition for writ of habeas corpus (docket no. 1).
The Court denies as moot Petitioner’s emergency motion for preliminary injunctive relief
(docket no. 3) and his motion for discovery (docket no. 6). The Court grants in part and denies

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in part the motion to expedite (docket no. 5). The motion is granted to the extent that the Court
has expedited review of this case. The Court denies the motion as moot to the extent Petitioner
sought to reduce the deadline for Respondent’s answer to the habeas petition.
If Petitioner appeals this decision, he may proceed in forma pauperis because an appeal
could be taken in good faith. 28 U.S.C. § 1915(a)(3). However, he is not required to move for a
certificate of appealability because the habeas “statute does not require a certificate of
appealability for appeals from denials of relief in cases properly brought under § 2241, where
detention is pursuant to federal process.” Witham v. United States, 355 F.3d 501, 504 (6th Cir.
2004).
Dated: March 8, 2018

s/ Sean F. Cox
Sean F. Cox
United States District Judge

I hereby certify that on March 8, 2018, the document above was served on counsel of record via
electronic means and upon Alexander Cucu via First Class Mail at the address below:
Alexander Cucu 60318-060
MILAN FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 1000
MILAN, MI 48160

s/Jennifer McCoy
Case Manager

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