Toole v. Krueger

Filing 21

ORDER. Based on all of the files, records, and proceedings herein, the Court SUSTAINS petitioner's objection 17 and DECLINES TO ADOPT the R&R 15 . IT IS HEREBY ORDERED THAT: 1. Petitioner's 28 U.S.C. § 2241 petition for writ of habeas corpus 1 is GRANTED. 2. Respondent is ORDERED to consider whether to place petitioner in immediate home confinement, using the same criteria that respondent would normally use to make such a determination under 18 U.S.C. § 3624(c)(2). 3. Petitioner's motion for an emergency or expedited hearing 2 is DENIED AS MOOT. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Patrick J. Schiltz on December 19, 2012. (clg) cc: Michael T. Toole. Modified on 12/19/2012 (lmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MICHAEL T. TOOLE,

Case No. 12-CV-2445 (PJS/TNL)

Petitioner,
ORDER
v.
J.E. KRUEGER, Warden,
Respondent.
Michael T. Toole, pro se.
D. Gerald Wilhelm, UNITED STATES ATTORNEY’S OFFICE, for respondent.
This matter is before the Court on the objection of petitioner Michael Toole to the
November 26, 2012 Report and Recommendation (“R&R”) of Magistrate Judge Tony N. Leung.
Judge Leung recommends that Toole’s petition for a writ of habeas corpus under 28 U.S.C.
§ 2241 be denied. The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b). Based on that review, the Court sustains Toole’s objection and grants his
§ 2241 petition.
Toole, a former state-court judge, is serving a 30-month sentence in the Federal Prison
Camp in Duluth, Minnesota. On September 27, 2012, Toole completed the first of three
components of the Residential Drug Abuse Program (“RDAP”).1 Toole contends that, as a
result, the Bureau of Prisons (“BOP”) has the authority (although, he concedes, not the

1

The other two components consist of (1) follow-up services, in which an inmate must
participate “[i]f time allows” before transfer to a community-based program, and (2) the
“transitional drug abuse treatment” (or “TDAT”) component, which takes place after transfer to
community confinement. 28 C.F.R. § 550.53(a).
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obligation) to immediately place him in a home-confinement program. Toole contends that this
authority derives from 18 U.S.C § 3621(e)(2)(A), which states, in pertinent part: “Any prisoner
who, in the judgment of the Director of the Bureau of Prisons, has successfully completed a
program of residential substance abuse treatment provided under paragraph (1) of this
subsection, shall remain in the custody of the Bureau under such conditions as the Bureau deems
appropriate.”
Respondent disagrees. According to respondent, the only authority under which the BOP
can designate an inmate to home confinement is found in 18 U.S.C. § 3624(c), which governs
prerelease custody determinations during the last 12 months of an inmate’s incarceration. Under
Section 3624(c)(2), the BOP may place an inmate in home confinement “for the shorter of
10 percent of the term of imprisonment of that prisoner or 6 months” — which, in Toole’s case,
would mean that he is not eligible for home confinement until the end of December.
Because Toole contends that he has been eligible for home confinement since
September 27, 2012, and because Toole is scheduled to be placed in home confinement on
January 2, 2013, ECF No. 20 at 1, Toole seeks an expedited decision on his petition. Doing its
best to work through this complicated issue in the short amount of time available to it, the Court
holds that Toole is correct: Under § 3621(e)(2)(A), the BOP has had the authority to place Toole
in home confinement since September 27, 2012, when Toole completed the first component of
the RDAP.
Toole’s petition essentially presents three questions: First, has Toole “successfully
completed a program of residential substance abuse treatment” for purposes of § 3621(e)(2)(A)?
Second, does § 3621(e)(2)(A) give the BOP the authority to place an inmate who has completed

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such a program in home confinement? And finally, if the BOP has the authority to place such an
inmate in home confinement under § 3621(e)(2)(A), do the time limits in § 3624(c)(2) limit that
authority?
The Court begins with the last question, which is the easiest to answer. Toole is correct
that the time limits in § 3624(c)(2) do not limit whatever authority the BOP has under
§ 3621(e)(2)(A) to place an inmate in home confinement. The statute itself makes this clear.
Section 3624(c)(4) expressly states that “[n]othing in this subsection shall be construed to limit
or restrict the authority of the Director of the Bureau of Prisons under section 3621.” Moreover,
even before § 3624(c) was amended to include this language, the Eighth Circuit had rejected an
argument that § 3624(c) limited the BOP’s authority under a different subsection of § 3621.
Elwood v. Jeter, 386 F.3d 842, 846-47 (8th Cir. 2004). In so holding, the Eighth Circuit
implicitly rejected the argument (relied on by the dissent in Elwood, and by Judge Leung in the
R&R) that the specific provisions of § 3624(c) should govern over the more general provisions
of § 3621 and that the petitioner’s position rendered § 3624(c) mere surplusage. See id. at 84748 (Riley, J. dissenting). If the BOP has the authority under § 3621(e)(2)(A) to place Toole in
home confinement, then both § 3624(c)(4) and Elwood make clear that nothing in § 3624(c)
limits that authority.
As noted, determining whether § 3621(e)(2)(A) in fact gives the BOP the authority to
place Toole in home confinement involves two questions: (1) Whether Toole has “successfully
completed a program of residential substance abuse” within the meaning of that provision and, if
so, (2) whether that provision gives the BOP the authority to place Toole in home confinement.

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Respondent notes — in passing, and in the “Background” section of his brief — that
“[s]uccessful completion of [the] RDAP requires an inmate to successfully complete all three
components.” See 28 C.F.R. § 550.53(a) (“[t]o successfully complete the RDAP, inmates must
complete each of the following [three] components”). But nowhere in his brief does respondent
explicitly argue that Toole has not completed a “program of residential substance abuse
treatment” for purposes of § 3621(e)(2)(A). In particular, nowhere in his brief does respondent
dispute Toole’s careful and detailed argument that the first, “unit-based” component of the
RDAP — a component that lasts a minimum of six months and that takes place in a treatment
unit set apart from the general prison population, see 28 C.F.R. § 550.53(a)(1) — meets the
definition of “residential substance abuse treatment” in § 3621(e)(5)(A). See 18 U.S.C.
§ 3621(e)(5)(A) (defining “residential substance abuse treatment” as “a course of individual and
group activities and treatment, lasting at least 6 months, in residential treatment facilities set
apart from the general prison population”). Notably, the R&R indicated that completing the
unit-based component triggers § 3621(e)(2)(A), see R&R at 15 (“Section 3621(e)(2)(A) provides
that a prisoner who has completed the unit component of the RDAP ‘shall remain in the custody
of the [BOP] under such conditions as the [BOP] deems appropriate.’”), and respondent did not
object in any way to this assertion.
Given the importance of this issue to Toole’s petition, the Court considers respondent’s
failure to argue explicitly that Toole has not successfully completed a “program of residential
substance abuse treatment” within the meaning of § 3621(e)(2)(A) — combined with
respondent’s failure to object to Judge Leung’s indication that the unit-based component satisfies
the requirements of § 3621(e)(2)(A) — to be a concession that Toole has “successfully

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completed a program of residential substance abuse treatment” for purposes of § 3621(e)(2)(A).
The Court also notes that respondent explicitly conceded that the third component of the RDAP
can be completed by the inmate while in home confinement. ECF No. 8 at 9. This is necessarily
a concession that, if § 3621(e)(2)(A) gives the BOP authority to place an inmate in home
confinement after the inmate has “successfully completed a program of residential substance
abuse treatment,” that authority can be exercised before the inmate completes the third
component of the RDAP.4 The only remaining question, then, is whether § 3621(e)(2)(A) gives
the BOP authority to place an inmate in home confinement after the inmate has “successfully
completed a program of residential substance abuse treatment.”
The BOP’s general custodial authority over inmates is set forth in §§ 3621(a) and (b).
Section 3621(a) commits a person who has been sentenced to a term of imprisonment to the
“custody” of the BOP “until the expiration of the term imposed, or until earlier released for
satisfactory behavior pursuant to the provisions of section 3624.” Section 3621(b), in turn,
authorizes the BOP to designate “any available penal or correctional facility” as the place of the
inmate’s imprisonment. There is authority for the proposition that a “penal or correctional
facility” includes a community corrections center. See Goldings v. Winn, 383 F.3d 17, 25-28
(1st Cir. 2004).5 Respondent argues, however, that a “penal or correctional facility” does not

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The second component of the RDAP — which appears to be designed to help inmates
transition back to the general prison population — must be completed only “[i]f time allows
between completion of the unit-based component of the RDAP and transfer to a communitybased program . . . .” 28 C.F.R. § 550.53(a)(2). Toole asserts — and respondent does not
dispute — that “time” does not “allow[]” him to complete the second component of the RDAP.
5

In Elwood, the government conceded that a community corrections center is a “penal or
correctional facility,” and the Eighth Circuit assumed that was true for purposes of its analysis.
Elwood, 386 F.3d at 846; see also Miller v. Whitehead, 527 F.3d 752, 755 n.3 (8th Cir. 2008).
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include home confinement. See Monigold v. Berkebile, No. 07-CV-0750, 2008 WL 623350,
at *8 (N.D. Tex. Mar. 5, 2008) (“Because home confinement does not equate to a penal or
correctional facility, § 3621(b) does not permit the BOP to designate an inmate’s home as his
place of imprisonment.”).
It may be true that an inmate’s home is not a “penal or correctional facility” within the
meaning of § 3621(b). But Toole is not relying on § 3621(b). Instead, Toole is relying on
§ 3621(e)(2)(A), which does not require that the inmate be confined in a “penal or correctional
facility.” Section 3621(e)(2)(A) requires only that the BOP keep the inmate in “custody . . .
under such conditions as the Bureau deems appropriate.” The Court concludes that this
provision authorizes home confinement, for two reasons:
First, both the Supreme Court and the Eighth Circuit have recognized that the question of
whether an inmate is in “custody” turns not on the inmate’s location — that is, on whether he is
confined to a particular facility — but instead on whether the inmate is subject to the BOP’s
control. In Reno v. Koray, 515 U.S. 50, 62-63 (1995), the Supreme Court explained, albeit in a
different context, that whether a defendant is in “official detention” for purposes of granting
credit for prior custody depends on whether the defendant is in the BOP’s custody. In so
holding, the Court recognized that the place of confinement does not define whether an inmate is
in the BOP’s custody; rather, the relevant question is whether the inmate is subject to the BOP’s
control. Id. at 63 (“Unlike defendants ‘released’ on bail, defendants who are ‘detained’ or
‘sentenced’ always remain subject to the control of the Bureau. This is an important distinction,
as the identity of the custodian has both legal and practical significance. A defendant who is
‘released’ is not in BOP’s custody . . . .” (citation omitted)); see also Moreland v. United States,

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968 F.2d 655, 659 n.8 (8th Cir. 1992) (“There exists a strong presumption that ‘custody’ refers to
the legal authority of the custodian . . . . The physical conditions to which federal inmates are
subjected vary widely . . . . The only common link among all those settings is that the inmates
are always subject to the authority of the Attorney General.” (citation and quotations omitted));
Goldings, 383 F.3d at 25 (noting that Koray “recogniz[ed] that the relevant criteria for
determining whether a court-imposed period of pre-trial detention in a CCC or other facility may
be credited against a term of imprisonment is not the type or place of confinement but whether
the defendant is in BOP custody”). These precedents suggest that an inmate who is confined to
his home is still in the BOP’s “custody” so long as the inmate remains subject to the control of
the BOP.
Second, the BOP interprets a provision that is substantively identical to § 3621(e)(2)(A)
— 18 U.S.C. § 4046(c) — to give it authority to place qualified inmates in home confinement
notwithstanding the time limitations in § 3624(c). See BOP Program Statement 7320.01
(Sept. 6, 1995).6 So far as the Court can tell, the BOP’s understanding of § 4046(c) is wellestablished and uncontroversial. See United States v. Pipitone, 67 F.3d 34, 36 (2d Cir. 1995)
(noting that, in exchange for completing a shock-incarceration program under § 4046(b), a
defendant may be considered for home confinement under § 4046(c)); U.S.S.G. § 5F1.7 cmt.
(noting that, in return for completing a shock-incarceration program, “the defendant is eligible to

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The reference to this exception in Program Statement 7320.01 could be read to address
the BOP’s authority to place inmates in community corrections facilities rather than its authority
to place inmates in home confinement. Program Statement 7320.01 is entitled “Home
Confinement,” however, and its “purpose and scope” is to “establish policy and procedures for
referral and placement of pre-release inmates in Community Corrections home confinement
programs.” The Court therefore interprets it to address only the BOP’s home-confinement
authority.
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serve the remainder of his term of imprisonment in a graduated release program comprised of
community corrections center and home confinement phases”). If § 4046(c) permits the BOP to
place an inmate in home confinement, then § 3621(e)(2)(A) — which, for all relevant purposes,
is identical to § 4046(c) — must likewise grant the BOP such authority. This interpretation is
consistent with the implicit definition of “custody” recognized by the Supreme Court and the
Eighth Circuit, under which it is the BOP’s control over the inmate, rather than the place of the
inmate’s confinement, that defines whether an inmate is in BOP custody.
The Court therefore concludes that placing an inmate in home confinement is consistent
with the requirement in § 3621(e)(2)(A) that an inmate who has successfully completed a
program of residential substance abuse treatment “remain in the custody of the Bureau under
such conditions as the Bureau deems appropriate.” Having concluded (1) that Toole has
“successfully completed a program of residential substance abuse treatment” within the meaning
of § 3621(e)(2)(A); (2) that § 3621(e)(2)(A) gives the BOP the authority to place an inmate in
Toole’s position in home confinement; and (3) that § 3624(c)(2) does not limit the BOP’s
authority to place an inmate in Toole’s position in home confinement, the Court will grant
Toole’s petition and order the BOP to consider whether to place Toole in immediate home
confinement.
ORDER
Based on all of the files, records, and proceedings herein, the Court SUSTAINS
petitioner’s objection [Docket No. 17] and DECLINES TO ADOPT the R&R [Docket No. 15].
IT IS HEREBY ORDERED THAT:

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1.

Petitioner’s 28 U.S.C. § 2241 petition for writ of habeas corpus [Docket No. 1] is
GRANTED.

2.

Respondent is ORDERED to consider whether to place petitioner in immediate
home confinement, using the same criteria that respondent would normally use to
make such a determination under 18 U.S.C. § 3624(c)(2).

3.

Petitioner’s motion for an emergency or expedited hearing [ECF No. 2] is
DENIED AS MOOT.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: December 19, 2012

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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