Puerto Rico Association of Criminal Defense Lawyers

PRACDL "Tertulia Legal" - Sentenced in Two Jurisdictions

PRACDL will be hosting one of our regular tertulias on the topic  Sentenced in Two Jurisdictions - when sentences run concurrently and consecutively.

    Date     :    Thursday, June 5, 2008
    Time    :    4:30-6:00 p.m.
    Place    :    Judge García Gregory’s Courtrooom (#6)

Resources:    José Cordero, of FPD-PR, formerly of BOP
                    Jorge Rivera Ortíz, PRACDL
Moderator:    Linda Backiel

If you are interested in attending, please confirm via email at pracdl@gmail.com. The cost is free, as are the materials, although there will be no CLE credit for this one.

Help for Those Awaiting Surrender to the BOP with recommendations for ICC (Boot Camp) participation

In order to assist those with clients who may be awaiting surrender to the BOP, with recommendations for Intensive Confinement Center (ICC, Boot Camp) participation, which are being discontinued (see Bye, bye to federal Boot Camps), here is a  Motion for the Issuance of an Order Staying Defendant's Surrender to the Bureau of Prisons, prepared by AFPD Timothy W. Hoover, Office of the Federal Public Defender, Western District of New York, as well as an Order Staying the Surrender, both facilitated to us via BOPWatch by Todd Bussert, Esq.  Many thanks also to Tim Hoover for allowing us to post it.

First Circuit Upholds BOP's Interpretation of Good Time Statute

In Perez-Olivo v. Chavez, No. 04-1486 (1st Cir. January 7, 2005) the First Circuit sides with the BOP's interpretation of the good conduct time (GTC) statute, 18 U.S.C. § 3624(b)(1), to the effect that the maximum of 54 days per year are to be credited for years actually served, and not for years a defendant is sentenced to. The case arose in the District of Puerto Rico, with the petitioner being housed at MDC-Guaynabo, and is a habeas petition pursuant to 2241 in which District Judge Carmen C. Cerezo initially denied relief. In upholding the BOP's interpretation, the First Circuit joined a number of other Courts.

Lastly, we note that we are not alone in our conclusion that § 3624(b)(1) is ambiguous. Almost every other court that has visited this issue, including two other circuit courts of appeal, has found that "term of imprisonment" is ambiguous as used in § 3624(b)(1) and has upheld the BOP's interpretation of that term as meaning "time served." White v. Scibana, No. 04-2410, 2004 WL 2749863, at *4 (7th Cir. Dec. 2, 2004); Pacheco-Camacho v. Hood, 272 F.3d 1266, 1271 (9th Cir. 2001); Moore v. Bureau of Prisons, No. 04-5011, 2004 WL 2609589 (S.D.N.Y. Nov. 17, 2004); Young v. Ashcroft, No. 04-1449, 2004 WL 2624724 (D. Or. Nov. 16, 2004); Sash v. Zenk, No. 04-2476, 2004 WL 2549724 (E.D.N.Y Nov. 9, 2004); Loeffler, 2004 WL 2417805, at *3; Graves v. Bledsoe, 334 F. Supp. 2d 906, 908 (W.D. Va. Aug. 19, 2004); Pasciuti v. Drew, No. 04-043, 2004 WL 1247813, at *4-5 (N.D.N.Y. June 2, 2004). The only court that has found "term of imprisonment" to mean unambiguously "sentence imposed" was recently reversed on appeal. See White v. Scibana, No. 04-2410, 2004 WL 2749863 (7th Cir. Dec. 2, 2004) (reversing White v. Scibana, 314 F. Supp. 2d 834 (W.D. Wisc. 2004)). We now join these other courts and conclude that the phrase "term of imprisonment" as used in § 3634(b) is ambiguous, and that this ambiguity cannot be resolved by looking at either the context of the statute as a whole or the statute's legislative history.

Perez-Olivo, slip op. at 12-13. We had earlier posted here on White v. Scibana, No. 04-2410 (7th Cir. Dec. 2, 2004).

Bye, bye to federal Boot Camps

Howard O. Kieffer of BOPWatch reports on the forthcoming closing of federal Boot Camps:

The last inmates  for the Bureau's ICC programs (Boot Camp)  will be received this Friday, January 7, 2005.  When those classes graduate on June 28, 2005, the programs will cease operations.

This goes for ICC Lompoc, CA, ICC Lewisburg, PA and the women's program at FPC Bryan, Texas.

An email memo from the Director, received by all Bureau facilities yesterday confirms this directive.  The stated reason is (lack of) cost effectiveness.  I should have a copy of the memo within a few days.  A letter to Judges, Probation will be forthcoming.

All three  institutions will be "remissioned" as minimum federal prison camps.  In the  case of Lee Wells, the ICC Administrator at Lompoc, who has worked for the  Bureau for almost 20 years, he has no idea what he will be doing.

We will post the official notice as an update once Howard passes it along trhough the BOPWatch list-serve.

Update:  See Local judge, lawyers decry elimination of federal shock incarceration program by Dan Herbeck, News Staff Reporter, 1/8/2005, The Buffalo News.

7th Circuit Sides with BOP's Interpretation of Good Time Statute

In White v. Scibana, No. 04-2410 (7th Cir. Dec. 2, 2004) the Seventh Circuit reversed the District Court's opinion in White v. Scibana, 314 F. Supp. 2d 834 (W.D. Wis. 2004) which had interpreted 18 U.S.C. § 3624(b)(1) - the "good time" statute - as meaning that a prisoner should get 54 days of good time for each year of the sentence imposed, minus any deductions for disciplinary violations.  The Bureau of Prisons interprets the good time statute as allowing an award of up to fifty-four days of credit for each year the inmate actually serves in prison. The term an inmate actually serves is not the term imposed by the court but something less; annual good-time awards operate to incrementally reduce the term of imprisonment imposed in the sentence. The statutory good-time calculation is thus (according to the Bureau’s interpretation) not fifty-four days times the number of years imposed but fifty-four days for each year actually served.  The Seventh Circuit agreed with the BOP's interpretation.

Terry v. Menifee, No. 04-4505, 004 WL 2434978 (S.D.N.Y. Nov. 1, 2004) follows Goldings v. Winn and Elwood v. Jetter

We posted on Elwood v. Jetter here, and on Goldings v. Winn, here, here, and most recently here.

Now this in via Howard O. Kieffer at BOPWatch:

On November 1, 2004, Chief Judge Michael B. Mukasey (SDNY), in Terry v. Menifee, No. 04-4505, 2004 WL 2434978 (S.D.N.Y.), found that the statutory interpretation underlying the BOP's current policy regarding limiting CCC placement to the last 10% of one's sentence to be erroneous.

The court found that the BOP is entitled to deference ("some deference") in its interpretation and, while making it clear to note that it was not requiring placement in a CCC, it granted the petition and required reconsideration for CCC placement consistent with the factors BOP considers, etc. The Court stated that: The First and Eighth Circuits, the only Courts of Appeals that have spoken on the matter so far, have invalidated the BOP's new policy on the ground that the BOP's interpretation of the statutes is erroneous. See Elwood v. Jetter, No. 04-2253, 2004 WL 2331643 (8th Cir. Oct. 18, 2004); Goldings v. Winn, 383 F.3d 17, No. 03-2633 (1st Cir. Sept. 9, 2004). The SDNY in Terry ordered the respondent (Warden) to reconsider, promptly and in good faith, the appropriateness of transferring Mr. Terry to a CCC in light of the factors deemed appropriate by the BOP, without reference to the BOP policy promulgated in December 2002. It bears emphasis that this order's effect is to restore discretion to the BOP under it's pre-December 2002 policy over designation and transfer of federal prisoners. The order does not purport to establish Mr. Terry's entitlement to placement in a CCC.

As Todd Bussert, who has participated in several of these cases, also wrote at BOPWatch:

Judge Mukaskey's is one in a long line of written opinions from the SDNY invalidating the rule change, dating back to Judge Wood's decision in Greenfield v. Menifee [in] October, 2003. Notably, while the vast majority of the judges within that district have granted relief to the petitioner-prisoners, that is, directing BOP to reconsider their halfway house placement dates in a manner consistent with Judge Mukaskey's order, the government has not appealed one of its losses.

In terms of the proposed change published in the Federal Register in August, which Howard previously posted to the list, officials at the Rules Unit in Washington report that the earliest a new rule, with an effective date, might be issued is late January, and maybe not until next Spring.

Given that the October 18 deadline for comments has passed, those interested in seeing BOP's halfway house practices return to their pre-December 2002 form are encouraged to contact your Congressperson and express a position. Who knows, maybe the new AG will have a different opinion about the legality of BOP's historic practices than his/her predecessor.

Not believing that they have been previously posted at BOPWatch, comments from the American Bar Association, Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers, responding to the August notice, can be found on FAMM's site here.

Also, Corrections.com recently wrote about the "The Halfway House Debate." The  article, includes some compelling findings by the Urban Institute about bipartisan support for reentry initiatives.

If anyone has any information as to how this has played out with any inmates housed at MDC-Guaynabo, please leave a comment to this post, or e-mail PRACDL.

Thanks to BOPWatch and it's great contributors for the information.

BOP's Residential Drug Abuse Treatment Program (RDAP)

With many thanks to Howard O. Kieffer of BOPWatch, we refer counsel to a list of the BOP's facilities offering Residential Drug Abuse Treatment Program (RDAP), with the caveat that the list is not up to date, as the Allenwood and Devens facilities no longer have the program. In addition, one Low facility has been added (to the RDAP list): FCI Elkton. The FCI Terminal Island is being "remissioned" as a Low (it was formerly a Medium facility). Also, be aware that Lompoc's program is conducted in Spanish only.

The link also provides you with answers to frequently asked questions regarding BOP's Drug Treatment Programs.

Elwood v. Jeter, No. 04-2253 (8th Cir. October 18, 2004)

In Elwood v. Jeter,No. 04-2253 (8th Cir. Oct. 18, 2004) (Bureau of Prison's policy of limiting prisoner placement in Community Corrections Centers to the lesser of six months or ten percent of the prisoner's sentence is based on an erroneous interpretation of 18 U.S.C. Sections 3621(b) and 3624(c) and is invalid) we have an 8th Circuit follow-up on Goldings v. Winn, No. 03-2633 (1st Cir. Sept. 9, 2004), which we first posted on here, and here, and most recently here cites both to Goldings and a number of district courts that have also ruled likewise. These are all cases you should know to assist your clients.

Goldings v. Winn Update from Peter Goldberger via BOP Watch

      Peter Goldberger, has updated information on Goldings v. Winn, as reflected from this post at BOPWatch:

On 9/9/04 the First Circuit released its lengthy opinion in Goldings v. Winn, totally invalidating the BoP's policy limiting designation of CCCs for service of sentences of imprisonment, as well as its practice of limiting CCC utilization at the end of sentences to no more than 10% of the time to be served (not to exceed 6 mos.). On 9/27/04, according to the appellate docket, the DOJ informed the First Circuit that it would not be petitioning in this case for rehearing, and informing the Court 'that the Bureau of Prisons staff have been instructed to commence re-evaluation of Appellant's placement.'

Accordingly, on 9/30/04 the Court issued its mandate to the district court for enforcement of the decision. The Goldings decision is now binding precedent on all district judges and on all Bureau institutions and personnel within the First Circuit (Mass., NH, ME, RI and PR). Hopefully, it will also be highly persuasive precedent in all the rest of the federal districts throughout the country.

-- Peter Goldberger,
Ardmore, PA

We had earlier posted information on Goldings v. Winn

here ("Must Read: Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004)") and here ("A Healthy Exchange on Goldings v. Winn").

Also at BOPWatch, Howard O. Kieffer apparently confirms Peter Goldberger's belief as to the persuasiveness of Goldings v. Winn:

In the face of the  1st Circuit's Goldings opinion, with oral argument scheduled for next Friday (October 8, 2004), and the panel disclosed (Tashima, Paez and Pregerson), the Gov't has agreed to "allow" service of a Zone C sentence in a CCC, instead of a prison camp - in exchange for the dismissal of the appeal.

Not only will they "let" her serve the sentence in a CCC, but the CCC of her choice. This is exactly what they did with Montgomery in the 6th Circuit in July. Of course, the Gov't doesn't have to agree to any stipulated order "reversing" the denial of habeas and remanding for implementation of the parties' agreement that she be designated to the CCC for the full term of her sentence. And of course, they also do not have to even make a request that the underlying District Court decision be depublished.

This appeal would have/could have invalidated the Bureau's policy limiting designation of CCCs for service of sentences of imprisonment within the Ninth Circuit (as the First Circuit has done recently).

Sounds all good! We have asked Howard O. Kieffer to provide us with the case citations or docket numbers for the 9th Circuit and will update as soon as we get them.

UPDATE:  Howard O. Kieffer at BOPWatch reports here:

The case is Benton v. Ashcroft, 272 F.Supp.2d 1139 (S.D.Cal. 2003), where Judge Moskowitz essentially adopted the BOP’s 10% Rule in its entirety. In large part he reasoned that the BOP’s new policy was interpretive, rather than substantive, in nature, and thus was exempt from the notice and comment requirements of the APA.

The Docket No. for the Ninth Circuit appeal from this decision is 03-56343. While the oral argument is not yet off calendar, it is a done deal but for the 9th Circuit granting the motion for voluntary dismissal. The prosecutor would not agree as part of this deal to a vacatur of the district court decision but he said it was something we could address at a later point. There are now documents in the court record which indicate, however, that BOP did not apply this rule to this client, thus undermining their "no discretion to deviate" argument.

• Howard O. Kieffer
• Federal Defense Associates
• Santa Ana, California

Many thanks to Peter and Howard for the information. I have in past days notified the Acting Attorney Advisor at MDC-Guaynabo (Puerto Rico) as to whether they were aware of the decision and whether they were acting in accordance with the ruling. I have gotten no reply from the Acting Attorney Advisor, and there is a new Attorney Advisor who hails from the U.S. Attorney's Office but I do not even know if he has already commenced working there. I will write them again. Perhaps a inquiry from our Federal Public Defender (who also sits on PRACDL's Board -- are you reading Joe?) might get a faster response. Will post as soon as I have an answer. Or, if anyone else does, please add a comment to this post.

A Healthy Exchange on Goldings v. Winn

I am posting an exchange from the BOPWatch listserve, which directly pertains to the Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004) we covered in an earlier post here, and which I believe may be of assistance to all of us.

The question raised by one of the listserve members was as follows:

Once a person is in BOP custody, can an attorney help them get transferred  from a camp to 1/2 house or home detention?

      

One client is young man with fraud conviction & no priors who didn't make it at boot camp (not sure why he wanted boot camp as his sentence was 1 yr & 1 day). Anyway, now he is at Jesup & the family wants to hire me to help him get 1/2 house or home detention. He has served 6 months...I don't want to take their money if there is nothing I can do--I always understood that it was up to the case mgr & warden at the institution to make that transfer...
   

Other client is 65 yr old grandmother with severe heart problems.(documented). She was originally designated to Alderson, but now has been transferred to FMC Ft. Worth. She has a 15 month sentence for perjury--no prior record.

Any insight very appreciated.

The initial answer provided by Howard O. Kieffer was as follows:

Absent other facts, the Bureau's current practice is to limit CCC placement to 10% of the sentence as imposed. I would caution you not to take the money - at least under the scenario that you have posted.

I would be happy to discuss this area generally with you, as I am sure a few others here would, as we work regularly in this area.

Then Peter Goldberger, one of the attorneys in Goldings made the following comment:

As one of the attorneys to whom Howard is referring, I guess I should respond, too. It is actually unusual for me to disagree with Howard on questions like this, but in this instance I do. The BOP's current practice, limiting CCC placement to the last 10% of the good-time-adjusted sentence (so it is actually even less than "10% of the sentence as imposed"), is based on a legal misinterpretation of the governing statutes. Most judges have ruled that the BoP's current interpretation is wrong -- including most notably a unanimous panel of the First Circuit on 9/9 in Goldings v Winn. Most judges say that the BoP has full discretion to grant more than 10%, and have noted that before the Ashcroft Justice Dept imposed this new, bogus interpretation in 12/02 the BoP routinely gave up to 6 months in many cases.

If you want to challenge the current policy on legal grounds, a knowledgeable post-conviction attorney can definitely help. Most of the unsuccessful challenges have been brought pro se, or by lawyers who didn't know what they were doing. As one who has followed this litigation pretty closely from the beginning (and who has won many of them), I am not aware of any cases out of the Southern District of Georgia, where Jesup is located. (There is some good Northern District precedent, however.) That's what matters, since the vehicle you use is a habeas petition under sec 2241.

If all you're asking is whether a lawyer can help by intervening with the unit team, however, I would agree that the answer is probably No. In addition, based on the facts you gave, your client is probably not a good CCC candidate anyway. Many CCCs don't take referrals with serious health issues. And I'm guessing she's not going to be using the CCC as a base to look for a job. You and she might be better off suggesting that they give her the full 10% in home confinement, and that they send her directly there. If you're interested in the litigation option, however, you can contact me, or any of several other attorneys on this list.

-- Peter Goldberger, Ardmore, PA

Howard  O. Kieffer replied:

I absolutely agree with Peter. However, I was ignoring (for a moment) the unlawful practice (I said practice - NOT policy) that the Bureau is still intent on relying on, because of the stated facts: short sentence and (in the other client's case) health issues.

On a practical note, these are not particularly good facts for this type of litigation - and time would be short - so it really depends upon resources - not just dollars, but knowledge. Do contact Peter, if the resources are there.

One additional note of caution: The Bureau requires inmates that it is transferring to CCCs sign a statement that they are responsible for their own medical care. While in reality, this probably is not true (as they are still in BOP custody), no signature - no transfer. If the inmate won't be seeking employment while at the CCC (because of documented health reasons or disability), most CCCs will be vigilant in seeing that they are moved to home confinement (if they otherwise qualify) as soon as possible (so they can generate income from a working inmate who will pay 25% subsistence).

By the way, even on a short year and a day sentence, the ICC (boot camp) would have had a significant benefit (if successfully completed).

Todd Bussert, another of the attorneys in Goldings, then added the following:

Just to throw in my two cents, as someone also involved with this litigation: In terms of anyone on this list considering, or offering advice on, this type of litigation, it is important to recognize that prevailing on the legal merits (i.e., obtaining a decision that holds the 10% restriction unlawful) does NOT automatically mean that a federal prisoner serving a sentence of 70 months or less (those for whom the 10% restriction is a real issue) will receive a six-month halfway house placement. As Peter notes, judges invalidating the 10% rule have found that BOP does have discretion to provide more in terms of halfway house placement. At the same time, almost every court has referred the issue back to the petitioner's parent institution for a reconsidered CCC date. And, though many BOP institutions, prior to December 2002, regularly made pre-release CCC transfers of six months before a prisoner's projected release date, that was not necessarily the norm at every institution, nor what one should expect on reconsideration.Whether or not one's reconsidered date is made in good faith (i.e., without regard to the policy change and consistent with the institution's past practices) is another question entirely, and one into which many courts have been reluctant to inquire further.

Also, there are CCCs that accept retired individuals and/or those on disability; they simply want 25% of the benefits check. As many on this list can attest, securing a direct home confinement placement is not easy since most CCCs, which oversee the home confinement, want to 'get a feel' for a person before approving the move. Finally, the need to assume responsibility for medical care can often be handled by a family member in the community sending a letter to the case manager taking on the financial burden.

Todd Bussert

And Howard O. Kieffer concluded with the following:

And Todd is just as right. In my initial response - as someone involved in this type of litigation - I knew there was an absence of facts in what was initially presented.

Accordingly, one couldn't even consider whether retroactivity was an issue or many other things that are also fact driven. At the end of the day, the time that it takes to pursue these remedies, the shortness of the sentence and the great amount of discretion that would still remain - even if successful (before becoming moot) seemed to indicate that it wasn't the best case for expending great resources.

One thing that this discussion has shown is that we have great resources. I am sure that Lynn never contemplated getting this type of discourse. We have even made some of the blogs with this one. Thanks again to Lynn, Peter and odd.

• Howard O. Kieffer

I hope this helps you all a bit.  Thanks to BOPWatch for the exchange, and particular thanks to the learned attorneys in this matter for sharing your knowledge with us all.

As a final matter, I would urge all of you to sign up for BOPWatch since you can get a lot of very helpful information for your clients as well as many hints on how to help them best. Furthermore, you can ask questions about particular matters and get lots of ideas on how best to deal with it.