United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANT'S LETTER MOTION FOR ORDER
REQUIRING THE BUREAU OF PRISONS TO PLACE THE DEFENDANT IN A
COMMUNITY CORRECTIONAL FACILITY OR ON HOME CONFINEMENT (DKT.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
April 13, 2016, after he pled guilty to possessing with
intent to distribute twenty-eight grams or more of crack, the
court sentenced the defendant to serve sixty-six months of
incarceration. Dkt. Nos. 52, 53. On June 16, 2016, the court
amended the judgment, reducing the defendant's sentence
by six months, to a total of sixty months (or five years).
Dkt. No. 60.
21, 2018 (a little over two years after his sentencing
hearing), the court received a letter from the defendant.
Dkt. No. 63. He describes in detail his many successes while
in custody. He completed the Residential Drug Abuse
Program-RDAP, and now is a senior advisor to other inmates in
the program. He has taken a number of classes, including time
management, journalism, introduction to plumbing, sociology
and introduction to carpentry. Id. at 1. He speaks
eloquently of what he has learned about himself while in
custody, and about the kind of person he wants to be going
forward. He concedes that being in custody has been, and is,
hard, but he says that he is trying to learn from his
mistakes and do better. Id. at 2.
defendant indicates that “[t]he Second Chance Act was
converted into law where all inmates are statutorily eligible
for up to twelve months prerelease and or [residential
re-entry center] placements.” Id. The
defendant says that he believes that he deserves some
consideration “for these benefits of the law, ”
but that the staff at his current facility-F.C.I. Terre
Haute-disagree, and “refuse to honor the B.O.P. policy
and laws that were passed.” Id. He asks the
court “to impose . . . that [he] be placed in a
community correctional facility or placed on home confinement
for up to twelve months.” Id.
the Second Chance Act of 2007, 18 U.S.C. § 3624(c), the
Federal Bureau of Prisons is authorized to place prisoners in
a residential re-entry center, or halfway house, for up to 12
months before the end of the prisoner's term of
imprisonment.” Pence v. Holinka, No.
09-cv-489-slc, 2009 WL 3241874 at 1 (W.D. Wis., Sept. 29,
2009). The statute says that 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.” Id. (quoting 18
U.S.C. §3624(c)(1)). The Second Chance Act leaves the
decision about whether-and when-to place an inmate into a
community correctional facility or residential re-entry
center entirely to the discretion of the Bureau of Prisons.
Id. (citing Sessel v. Outlaw, 2009 WL
1850331, *4 (E.D. Ark. 2009); Daraio v. Lappin, 2009
WL 303995 (D. Conn. Feb. 9, 2009)).
deciding whether to place an inmate in one of these
facilities, the Second Chance Act requires the BOP to take
into account the factors listed in 18 U.S.C. §3621(b),
including the resources of the particular CCF or RRC; the
nature and circumstances of the defendant's crime; the
history and characteristics of the defendant; any statements
made by the court at sentencing regarding the reason for
imprisonment and any recommendations as to placement; and any
policy statements from the Sentencing Commission.
Holinka, 2009 WL 3241874 at *2.
court cannot grant the defendant's letter request, for
several reasons. First, the court does not know how long the
defendant has been in federal custody. He was in
state custody until his sentencing hearing on April 13, 2018.
The court imposed the defendant's sixty-month federal
sentence to run consecutively to-that is, after-the
defendant's state sentence. Dkt. No. 52 at 3. Without
knowing when the defendant completed his state sentence, the
court cannot tell how much of his sixty-month federal
sentence he has served. But it can't be more than about
twenty-six or twenty-seven months, because that's how
long it's been since the court sentenced the defendant.
The Second Chance Act says that the BOP has the discretion to
put an inmate into CCF or RRC for up to twelve months during
the “final months” of his prison term. A person
who has served only twenty-six or twenty-seven months of a
sixty-month sentence is not yet in the “final
months” of his prison term.
at least one other federal court has found that if an inmate
believes that the BOP has violated the Second Chance Act, the
proper way for him to bring his claim is in a petition for a
writ of habeas corpus under 28 U.S.C. §2241.
Holinka, 2009 WL 3241874 at *1; see also,
Graham v. Broglin, 922 F.2d 379, 381 (7th Cir.
1991); Glaus v. Anderson, 408 F.3d 382, 387-88 (7th
Cir. 2005)). The defendant has not filed a proper habeas
corpus petition under 28 U.S.C. §2241.
as the court noted above, the Second Chance Act gives the
Bureau of Prisons, not this court, the discretion to
decide whether and when to place an inmate in a CCF or a RRC.
This court does not have the authority to order the BOP to
place someone into a CCF or an RRC, unless the
defendant can prove that the BOP has violated some specific
provision of the Second Chance Act. At this point, when the
defendant has served less than half of his sentence, it seems
unlikely that he can prove that the BOP has violated the
statute. Even if he could, however, he would need to make
that claim in a habeas petition.
court is very, very pleased to hear about the good work the
defendant has been doing while in custody. It sounds like he
is using his time very wisely, not only to help himself, but
to help others. The court can't help but think that when
the time does come for the BOP to consider the
requirements of the Second Chance Act, the defendant's
good efforts will help him greatly. The court encourages him
to keep up the good work, so that when he is approaching the
final months of his sentence, the BOP will have many good
reasons for exercising its discretion to place him in the
community as soon as possible.
court DENIES the defendant's letter
motion for an order requiring the Bureau of Prisons to place
the defendant in a community correctional ...