YUSHUVAYEV v. HOLLINGSWORTH

Filing 7

OPINION. Signed by Judge Noel L. Hillman on 3/18/2015. (tf,n.m. )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN JORDAN R. HOLLINGSWORTH,
:
:
Respondent.
:
___________________________________:
NISIM YUSHUVAYEV,

Civ. No. 14-5851 (NLH)
OPINION

APPEARANCES:
Petitioner pro se
Nisim Yushuvayev, #63039-053
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Counsel for Respondent
David Vincent Bober, Assistant U.S. Attorney
Office of the U.S. Attorney
402 East State Street, Suite 430
Trenton, NJ 08608
Paul A. Blaine
Office of the U.S. Attorney, Assistant U.S. Attorney
401 Market Street, 4th Floor
Camden, NJ 08101

HILLMAN, District Judge
Petitioner Nisim Yushuvayev, a prisoner confined at the
Federal Correctional Institution (“FCI”) at Fort Dix, New
Jersey, has submitted a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. 1

The sole named Respondent is

Warden Jordan Hollingsworth.
Because it appears from a review of the Petition and the
parties’ submissions that Petitioner is not entitled to relief,
the Petition will be denied.
I.

BACKGROUND

On November 15, 2006, Petitioner was sentenced in the
United States District Court for the Eastern District of New
York to a term of 120 months imprisonment, with 5 years of
supervision to follow, for conspiracy against rights, in
violation of 18 U.S.C. § 241.

The conviction stemmed from a

scheme in which Petitioner, while working as a Customs and
Border Patrol Agent, attempted to unlawfully deport a
cooperating witness who was expected to testify for the
Government in an alien smuggling case.

Both parties are in

agreement that, assuming he receives all available good-conduct
credit available, Petitioner’s projected release date is July
25, 2015.

1

Section 2241 provides in relevant part:
(a)

Writs of habeas corpus may be granted by the Supreme
Court, any justice thereof, the district courts and
any circuit judge within their respective
jurisdictions.

. . .
(c) The writ of habeas corpus shall not extend to a
prisoner unless-- . . . (3) He is in custody in
violation of the Constitution or laws or treaties of
the United States[.]

On November 7, 2013, approximately 20 months in advance of
Petitioner’s projected release date, his Unit Team at FCI Fort
Dix held a “program review” during which it discussed whether
Petitioner should be placed in a Residential Re-entry Center
(“RRC”) prior to his release.

Ultimately, the Unit Team

assigned to Petitioner’s case determined that an RRC placement
of 90-120 days was sufficient.
Unsatisfied with this determination, Petitioner filed a
motion with the judge who sentenced him, seeking a judicial
recommendation that he be placed in an RRC for twelve months.
On August 4, 2014, the sentencing judge granted the motion,
finding that “twelve months of placement in a RRC would
facilitate the Defendant’s re-adjustment into the community.”
Petition at 41 (“Exhibit J”), Yushuvayev v. Warden
Hollingsworth, No. 14-5851 (D.N.J. Sept. 22, 2014) ECF No. 1.
The court directed that the order be forwarded to Petitioner’s
case manager at FCI Fort Dix. Id.

As a result, on August 19,

2014, Petitioner’s Unit Team held a meeting to reconsider
Petitioner’s RRC placement in light of the sentencing judge’s
order. The Unit Team reconsidered Petitioner’s placement but
adhered to its initial recommendation of 90-120 days.
On or about January 19, 2014, Petitioner filed an
administrative remedy form with the warden of FCI Fort Dix,
challenging his Unit Team’s RRC recommendation.
2014, the warden denied the request.

On February 4,

Petitioner appealed that

determination administratively, and the appeal was denied on
April 2, 2014. Petitioner then appealed that denial to the BOP
Central Office, and did not receive a response.
Subsequently, Petitioner filed this Petition for Writ of
Habeas Corpus challenging certain aspects of the execution of
his federal sentence.

Specifically, Petitioner contends that

“the discretion utilized to limit Petitioner’s RRC Placement was
not ‘exercised... in accordance with the relevant statutory
factors.’” Reply at 3, Yushuvayev, No. 14-5851, ECF No. 5
(emphasis omitted).

Petitioner requests that the Court: (1)

require the Bureau of Prisons to “reconsider the length of
Petitioner’s RRC placement in accordance with the Second Chance
Act without regard to the limitations imposed by the April 14,
2008, November 14, 2008 and June 24, 2010 memoranda”; and (2)
compel the “Regional Director to separately and in good faith
consider whether Petitioner should be awarded a 12-month RRC
placement as an incentive for his participation in BOP’s skills
development program.” Id.
In an Order entered on October 14, 2014, this Court ordered
Respondent to file an answer, which was received on November 14,
2014. 2

Petitioner filed a Reply on December 4, 2014.

Briefing

is complete and this matter is now ready for decision. 3

2

Respondent concedes that Petitioner has exhausted his
administrative remedies with respect to this claim.
3

The Court received a letter from Petitioner dated January 5,
2015 in which Petitioner alleges that the BOP RRC Placement

II.

ANALYSIS

A. The Second Chance Act
Title 18 Section 3621(b) governs Bureau of Prisons inmate
placement decisions, generally, and 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(1)
(2)
(3)
(4)

(5)

the resources of the facility contemplated;
the nature and circumstances of the offense;
the history and characteristics of
the prisoner;
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
any pertinent policy statement issued by
the Sentencing Commission pursuant to
Section 994(a)(2) title 28 ... .

... Any order, recommendation, or request by a
sentencing court that a convicted person serve a
term of imprisonment in a community corrections
facility shall have no binding effect on the
authority of the Bureau under this section to
determine or change the place of imprisonment.

Manager is refusing to process Petitioner’s RRC Placement packet
until this Court renders a decision with respect to this
Petition. Assuming this assertion to be true, the issuance of
this Opinion and accompanying Order renders this issue moot.

In general, community corrections facilities are “penal or
correctional” facilities within the meaning of § 3621(b) and a
prisoner can be placed at a community corrections facility at
any time during his imprisonment.

See, e.g., Miller v. Federal

Bureau of Prisons, 147 F. App’x 302 (3d Cir. 2005).
1. Residential Re-entry Center Placement
A separate provision, 18 U.S.C. § 3624(c), governs the
BOP’s obligation to facilitate inmates’ re-entry into society,
and permits the BOP, among other things, to place prisoners in
Residential Re-entry Centers.

As amended by the Second Chance

Act of 2007, Pub. L. No. 110-199, effective April 9, 2008 (the
“Second Chance Act”), section 3624(c) provides, in pertinent
part:
(1) In General.--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.
...
(4) No limitations.--Nothing in this subsection
shall be construed to limit or restrict the
authority of the Director of the Bureau of Prisons
under section 3621.
...
(6) Issuance of regulations.--The Director of the
Bureau of Prisons shall issue regulations pursuant

to this subsection not later than 90 days after the
date of the enactment of the Second Chance Act of
2007, 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) (emphasis added).
On April 14, 2008, between the effective date of the Second
Chance Act and October 21, 2008 (the date of publication of the
interim rule), the BOP issued a guidance memorandum directing
staff of the following changes set forth by the Second Chance
Act: (1) RRC placements were increased to a maximum of 12
months; (2) RRC placement determinations were to be made on an
individualized basis using the criteria set forth in 18 U.S.C. §
3621(b); and (3) sentencing court orders, recommendations, or
requests directing an inmate’s placement in an RRC were not
binding.
The April 14, 2008 Guidance Memorandum advised that
“inmates must now be reviewed for pre-release RRC placements 1719 months before their projected release dates,” and the
memorandum set forth the five factors under 18 U.S.C. § 3621(b)
that must be considered when determining RRC placement dates.

Declaration of Konrad Adamiec (“Attachment 7”) at 33, Nelson v.
Zickefoose, No. 12-2269 (D.N.J. Sept. 5, 2012) ECF No. 7-1. 4
With respect to the latter advisement, the memorandum stated:
[T]he Act requires staff to ensure that each prerelease RRC placement decision is “of sufficient
duration to provide the greatest likelihood of
successful reintegration into the community.” See 18
U.S.C. § 3624(c)(6)(C) (amended). This means that BOP
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. Provisions in [Program Statement] 7310.04
that reflect any other possible maximum timeframe must
be ignored.

Id., at 36 (emphasis in original).
The Guidance Memorandum cautioned, “[w]hile the Act makes
inmates eligible for a maximum of 12 months pre-release RRC
placements, Bureau experience reflects inmates’ pre-release RRC
needs can usually be accommodated by a placement of six months
or less.

Should staff determine an inmate’s pre-release RRC

placement may require greater than six months, the Warden must
obtain the Regional Director’s written concurrence before
submitting the placement to the Community Corrections Manager.”
Id.

4

Respondent fails to attach the April 14, 2008, November 14,
2008 and June 24, 2010 BOP Memoranda to its Response. However,
the existence and substance of these memoranda are not in
dispute. Additionally, these memoranda were referenced and
appear on the docket in Nelson v. Zickefoose, No. 12-2269 (NLH).
Accordingly, the Court takes judicial notice of these memoranda
and will cite to them as they appear on the docket in Nelson.

On October 21, 2008, the BOP issued the regulations
required by the Second Chance Act setting forth procedures for
evaluating inmates’ pre-release placement decisions to RRCs or
home detention. See 28 C.F.R. §§ 570.20-570.22.

Following

issuance of the new regulations, on November 14, 2008, the
Bureau of Prisons issued a new Guidance Memorandum. Similar to
the April memorandum, the November memo requires “unusual or
extraordinary circumstances justifying” placement in an RRC
beyond six months, and then only with the approval of the
Regional Director. Declaration of Konrad Adamiec (“Attachment
8”) at 44, Nelson, ECF No. 7-1.
On June 24, 2010, the BOP issued a third, revised Guidance
Memorandum. Declaration of Konrad Adamiec (“Attachment 9”) at
58, Nelson, ECF No. 7-1.

This memorandum directed staff “to

focus on RRC placement as a mechanism to reduce recidivism.” Id.
at 58.

In that regard, the third memorandum stated:

Our RRC resources are limited and must be focused on
those inmates most likely to benefit from them in term
of anticipated recidivism reduction. In other words,
our decisions are to be based on an assessment of the
inmate’s risk of recidivism and our expectation that
RRC placement will reduce that risk. Our strategy is
to focus on inmates who are at higher risk of
recidivating and who have established a record of
programming during incarceration, so that pre-release
RRC placements will be as productive and successful as
possible.
Id.

The third memorandum re-emphasized that individual

assessment is required to determine each inmate’s

appropriateness for RRC placement and the length thereof, using
the factors set forth in 18 U.S.C. § 3621(b). Id. at 59.

In a

change from the two prior memoranda, the June 24, 2010,
memorandum stated that “Regional Director approval of RRC
placement longer than six months is no longer required.” Id.

As

to length of RRC placement (for those inmates found to be
appropriate for same), the 2010 memorandum directed staff
attention to “high-risk versus low-risk inmates,” with the
guidance that inmates with a higher risk for recidivism should
be considered for longer RRC placements (at least 90 days
whenever possible). Id. at 61.
2. Federal Prisoner Re-entry Initiative
The Second Chance Act also enacted 42 U.S.C. § 17541, which
provides for the establishment of a Federal Prisoner Reentry
Initiative. The Statute provides in pertinent part:
(a)

in general. The Attorney General, in coordination with
the Director of the Bureau of Prisons, shall, subject
to availability of appropriations, conduct the
following activities to establish a federal prisoner
reentry initiative:

. . .
(2) Incentives for a prisoner who participates in
reentry and skills development programs which may,
at the discretion of the Director include(A) the maximum allowable period in a community
confinement facility;
42 U.S.C. § 17541(a)(2)(A).

Thus, pursuant to 42 U.S.C. § 17541(a)(2)(A), one incentive
for inmate participation in BOP skills development programs is
consideration for the maximum allowable placement in an RRC.
B.

Petitioner’s Claim
Petitioner clarifies in his Reply that he does not believe

he is entitled to any particular length of pre-release placement
in RRC. Reply at 3, Yushuvayev, No. 14-5851, ECF No. 5.

He

concedes that “pre-release decisions are committed by statute to
the discretion of the Director of the Bureau of Prisons.” Id.
(emphasis omitted).

However, Petitioner takes issue with the

Unit Team’s review of his RRC placement in two respects.

First,

he contends that the length of his RRC placement should be
reviewed separately, and in good faith, by the Regional
Director.

Second, Petitioner asserts that the length of his RRC

placement should have been considered in accordance with the
Second Chance Act without regard to the limitations imposed by
the April 14, 2008, November 14, 2008 and June 24, 2010
memoranda.
1. Personal Review by the Regional Director
Petitioner contends that the “discretion utilized to limit
Petitioner’s RRC Placement was not “exercised . . . in
accordance with the relevant statutory factors.” Id. (emphasis
omitted).

This Court disagrees.

In support of his contention

that the statute was not properly followed, Petitioner notes

that the Regional Director never independently and separately
considered Petitioner’s successful participation in BOP skills
development programs when considering the length of Petitioner’s
RRC placement.

For the reasons that follow, this Court rejects

Petitioner’s arguments and determines that the Regional
Director’s independent review of Petitioner’s case is not
required by statute, or any other source.
Petitioner first argues that independent consideration by
the Regional Director of RRC placement is required by the
language of 42 U.S.C. § 17541(a)(1)(G).

As an initial matter,

the Court notes that the language of the statute makes no
reference to a “Regional Director.”

The “Director” referred to

in 42 U.S.C. § 17541 is the “Director of the Bureau of Prisons.”
See 42 U.S.C. § 17541 (“The Attorney General, in coordination
with the Director of the Bureau of Prisons, shall . . . ”).
Therefore, Petitioner finds no support for his request that his
case be independently reviewed by the Regional Director in this
statute.
Additionally, nothing in § 17541 requires the Director of
the BOP to personally complete an independent review of each
prisoner’s participation in skills development programs in order
to determine the length of his or her RRC placement.

Rather, §

17541 simply establishes that one of the incentives for
participation in skills development programs may include

consideration for the maximum allowable placement in an RRC and
that the decision to include this maximum period as an incentive
is left to the Director’s discretion.

Section 17541 does not

direct that the Director, himself or herself, perform the
analysis associated with determining the length of each
prisoner’s pre-release placement.

As discussed below, this

analysis and pre-release placement decision is left to the
discretion of the Bureau of Prisons, in general.
The statutes which more specifically govern pre-release
placement decision are 18 U.S.C. § 3621(b) and 18 U.S.C. §
3624(c).

Section 3621(b) empowers the Bureau of Prisons, not

the Director, to decide inmate placement decisions. See 18
U.S.C. § 3621(b) (“The Bureau of Prisons shall designate the
place of the prisoner’s imprisonment.”).

Likewise, the

Director’s role under § 3624(c) is limited to considering
conditions to facilitate prisoners’ re-entry into the community,
and to issuing regulations to ensure placement in a community
correctional facility. See 18 U.S.C. § 3624(c)(1) & §
3624(c)(6).

It is the Bureau of Prisons who, according to the

statute, ultimately makes the placement decision. See 18 U.S.C.
§ 3624(c)(6).
To the extent Petitioner argues that the Director’s
personal review of his RRC placement is required in light of
this Court’s holding in Nelson v. Zickefoose, No. 12-2269 (NLH),

2013 WL 140049 (D.N.J. Jan. 9, 2013), Petitioner is mistaken.
In Nelson, this Court stated that “pre-release placement
decisions are committed by statute, to the discretion of the
Director of the Bureau of Prisons, whose exercise of discretion
is to be guided by the enumerated considerations.” Nelson, 2013
WL 140049 at *14 (emphasis added) (citing Travers v. Federal
Bureau of Prisons, No. 09-5153, 2009 WL 4508585 (D.N.J. Nov. 30,
2009)).

Although this Court’s statement in Nelson makes

specific reference to the Director of the BOP, as explained
above, the applicable statutes clearly mandate that preplacement decisions are made by the BOP.

Moreover, Nelson cites

to a Sixth Circuit case which expressly noted that it is the BOP
who considers the length of an inmate’s placement in an RRC. See
Lovett v. Hogsten, No. 09-5605, 2009 WL 5851205, at *2 (6th Cir.
Dec. 29, 2009) (“[T]he 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)
(original citations omitted).
Finally, prior to the reference to the Director, this Court
stated earlier in its Nelson Opinion that it was the BOP’s
obligation to consider a twelve-month pre-release RRC placement
and that prisoners’ confinement remained at the BOP’s
discretion. Nelson, 2009 WL 4508585 at * 5 (“[T]he current

obligation of the BOP, under § 3624(c), to consider a twelvemonth pre-release RRC placement does not limit the BOP’s
discretion, under § 3621(b), to confine a prisoner in an RRC, at
any time, for any period.”).

Thus, aside from the potentially

misleading statement referencing the Director specifically, the
decision in Nelson stands for the proposition that pre-release
placement decisions are made by the BOP, in general, and not the
Director personally.

Therefore, Nelson does not support

Petitioner’s argument that his RRC placement decision should be
independently reviewed by the Regional Director.
This Court now clarifies what may have been unclear from
its holding in Nelson: Pre-placement decisions are committed, by
statute, to the Bureau of Prisons, whose exercise of discretion
is to be guided by the enumerated considerations.

There exists

ample case law which affirms that the BOP makes pre-placement
decisions and which simultaneously establishes that the Second
Chance Act does not entitle a federal prisoner to any particular
length of pre-release placement in an RRC. See Lovett, 2009 WL
5851205; Creager v. Chapman, No. 09-713-A, 2010 WL 1062610
(N.D.Tex. March 22, 2010) (“The duration of [residential reentry
center] placement is a matter as to which the [Bureau of
Prisons] retains discretionary authority.”) (internal citations
omitted); McDonald v. Obama, No. 10-379, 2010 WL 1526443
(M.D.Pa. March 15, 2010) (“[T]he [Second Chance] Act expressly

and repeatedly emphasizes that the Bureau of Prisons retains
full discretion in identifying when and how inmates are placed
at RRCs.”).
Accordingly, Petitioner’s pre-release placement is not
subject to independent review by the Regional Director and this
Court’s review is limited to whether the Bureau of Prisons
abused its discretion. Vasquez v. Strada, 684 F.3d 431, 434 (3d
Cir. 2012) (citing Barden v. Keohane, 921 F.2d 476, 478 (3d Cir.
1991)).

Here, the record clearly establishes that the Unit Team

and reviewing officials properly exercised their discretion in
accordance with the statutory factors.

Petitioner received

individualized consideration and his placement was re-evaluated
in light of the sentencing judge’s recommendation. Declaration
of BOP Case Manager Carrie Masters at 8, 12 & 14, Yushuvayev,
No. 14-5851, ECF No. 4-2.

Petitioner’s disagreement with the

outcome does not entitle him to habeas relief. See Creager, 2010
WL 1062610.
2. Reconsideration without regard to BOP Memoranda
Petitioner’s second request for relief in this § 2241
petition is that the Court compel the BOP to reconsider the
length of his RRC placement without regard to the limitations
imposed by the April 14, 2008, November 14, 2008 or June 24,
2010 memoranda.

Petitioner cites to Krueger v. Martinez, 665 F.

Supp. 2d 477 (M.D.Pa. 2009) in support of his argument.

In

Krueger, the court found that the April 2008 and November 2008
BOP memoranda — which instructed staff that pre-release
placement needs can usually be accommodated by a placement of
six months or less, and which required staff to seek approval
from a Regional Director for placements longer than six months —
had the effect of limiting staff discretion.
As an initial matter, the Court notes that the holding in
Krueger is not binding on this Court.

Additionally, many other

courts have declined to adopt the rationale in Krueger. See
e.g., Greene v. Longley, No. 11-109, 2011 WL 3924984 (W.D.Pa.
Sept. 7, 2011); Bernard v. Roal, No. 09-3740, 716 F. Supp. 2d 354
(S.D.N.Y. June 10, 2010); Ramos v. Holt, No. 10-681, 2010 WL
2471707 (M.D.Pa. May 5, 2010); McDonald v. Obama, No. 10-379,
2010 WL 1526443 (M.D.Pa. March 15, 2010).
Furthermore, the record in this case demonstrates that
Petitioner's six-month RRC placement was determined not on the
basis of the limitations contained in the BOP memoranda, but as
a result of application of the § 3621(b) factors. See
Declaration of BOP Case Manager Carrie Masters at 8, 12 & 14,
Yushuvayev, No. 14-5851, ECF No. 4-2; see also, Kirksey v.
Zickefoose, No. 09-6422, 2010 WL 2759564 (D.N.J. July 12, 2010).
The Unit Team twice determined that an RRC placement of 90-120
days was sufficient.

Also, the third BOP memorandum, issued on

June 24, 2010, eliminated the requirement for Regional Director

approval of RRC placement longer than six months.

Thus, the

provisions in the memoranda which Petitioner argues are
restrictive or impermissibly limiting did not come into play in
his case.
As stated earlier, the record establishes that the Unit
Team and reviewing officials properly exercised their discretion
in accordance with the statutory factors.

Petitioner has not

demonstrated that he "is in custody in violation of the
Constitution or law or treaties of the United States ...," as
required for relief under 28 U.S.C. § 2241.
III. CONCLUSION
For the reasons set forth above, the Petition will be
denied.

An appropriate Order follows.

_s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: March 18, 2015
At Camden, New Jersey