Woodall v. Federal Bureau of Prisons ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-15-2005
Woodall v. Fed Bur Prisons
Precedential or Non-Precedential: Precedential
Docket No. 05-3657
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3657
SHAWN JAMES ALLEN WOODALL,
Appellant
v.
FEDERAL BUREAU OF PRISONS; WARDEN JOHN NASH;
HARLEY G. LAPPIN, DIRECTOR
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 05-cv-01542)
District Judge: Honorable Freda L. Wolfson
Argued November 15, 2005
Before: ROTH, FUENTES, and BECKER, Circuit Judges.
(Filed December 15, 2005)
OPINION OF THE COURT
MARY GIBBONS, ESQ. (ARGUED)
600 Mule Road, #16
Holiday Plaza III
Toms River, New Jersey 08757
Attorney for Appellant
CHRISTOPHER J. CHRISTIE, ESQ.
UNITED STATES ATTORNEY
DOROTHY DONNELLY, ESQ.
ASSISTANT UNITED STATES ATTORNEY
United States Attorney’s Office
402 East State Street, Room 502
Trenton, New Jersey 08608
HENRY J. SADOWSKI, ESQ. (ARGUED)
Federal Bureau of Prisons
2nd & Chestnut Streets
United States Customs House
7th Floor
Philadelphia, Pennsylvania 19106
Attorneys for Appellants
BECKER, Circuit Judge.
Shawn James Allen Woodall, a federal prisoner,
challenges recently adopted Bureau of Prison (“BOP”)
regulations that limit a prisoner’s placement in community
confinement to the lesser of ten percent of the prisoner’s total
sentence or six months. Woodall’s appeal from the order of the
District Court denying his petition for a writ of habeas corpus
presents two important questions. First, may Woodall bring this
challenge in habeas? Because we believe that Woodall’s
challenge goes to the execution of his sentence, we hold that
habeas corpus does lie. Second, we must decide whether the new
BOP regulations run afoul of the BOP’s governing statute and
congressional intent. We believe that they do. The governing
statute at issue here, 18 U.S.C. § 3621(b), lists five factors that
the BOP must consider in making placement and transfer
determinations. The 2005 regulations, which categorically limit
the amount of time an inmate may be placed in a Community
Corrections Center (“CCC”), do not allow the BOP to consider
these factors in full. We will therefore vacate the judgment of the
District Court, and remand for further proceedings.
2
I. Facts and Procedural History
Woodall is currently incarcerated at the Federal
Correctional Institution at Fort Dix, New Jersey. He was
convicted of alien smuggling in the United States District Court
for the Southern District of California and was sentenced on
December 15, 2000, to a 37-month imprisonment to be followed
by three years of supervised release. On September 30, 2002,
after pleading guilty to an escape charge under 18 U.S.C. § 751,
Woodall was sentenced to another six months of imprisonment to
be followed by three years of supervised release. He was released
on March 26, 2004, to serve the three-year term of supervised
release.
On April 7, 2004, Woodall was arrested by California
authorities for possession of a controlled substance. At
sentencing, Woodall represented that his offense was a result of
the fact that he was released by the BOP on March 26, 2004, with
“no money, no identification and no assets, into a community
where he had no ties whatsoever.” 1 On September 7, 2004, the
1
Woodall explained to the sentencing court that he was
released on a Friday, and that 30 days before his release he had
asked to have his probation moved from California – where he had
no ties – to Oklahoma where his family lived. He claims that he
spoke with a correctional center authority and wrote a letter to the
probation department claiming “I am about to get out of prison. .
. . It’s on a Friday. I do not want to be released in the community
with no assets. No money. Just the clothes on my back. No
identification. No nothing.” However, he received no assistance.
Woodall wrote a letter to his sentencing court, expressing his
concern. He sought halfway house placement, or money, neither of
which he obtained. Woodall states that once he was released, with
no money or housing, he went to his probation department to
explain that he was homeless and needed a transfer or assistance.
He was told that his probation officer was on vacation and was
given no assistance. He claimed that “[o]n April 7th , I am on the
streets living in a blanket on the streets in San Diego on a sidewalk
with nothing. After 46 months of imprisonment with not a penny
in my pocket. I am in a drug infested neighborhood.” The
3
District Court for the Southern District of California revoked
Woodall’s supervised release for the earlier alien smuggling
conviction and sentenced him to eighteen months imprisonment
with no supervised release. The next day, his supervised release
was revoked with respect to the escape conviction, and he was
sentenced to twelve additional months in prison. The sentence
imposed was below the guideline range “based on Mr. Woodall’s
comments as to the situation he found himself in on the streets
without any money, and the fact that the government concurs
that’s what happened.” See supra note 1.
Significantly, on February 3, 2005, the sentencing judge
entered an order amending the sentencing judgment and
recommending to the Bureau of Prisons that Woodall spend the
last six months of his sentence in a halfway house. The Assistant
United States Attorney on the case “urged” that placement.
Woodall now remains in custody with a projected release date of
April 3, 2006. While his sentencing judge recommended a
halfway house placement for the final six-months of his sentence,
Woodall was informed by the Unit Manager at Fort Dix that
because of the BOP policy changes at issue in this appeal, he
could be placed in a CCC for no more than 10 percent of his total
sentence. Therefore, Woodall would be entitled to no more than
eleven weeks of CCC placement. According to the government,
Woodall will be placed in community confinement on or around
January 16, 2006.
Woodall thereupon filed a habeas petition pursuant to 28
U.S.C. § 2241, arguing that the new BOP regulations
impermissibly ignored the placement recommendations of his
sentencing judge.2 His petition was dismissed by the District
government did not dispute these facts.
2
The District Court excused Woodall’s failure to exhaust his
administrative remedies. It determined that exhaustion would be
futile, given that Woodall is not challenging the application of the
BOP regulations, but their validity. The government does not
contest this issue on appeal. We agree with the District Court that
the purposes of exhaustion would not be served here by requiring
Woodall to exhaust his administrative remedies, and we affirm on
this matter. See, e.g., Pimentel v. Gonzalez, 367 F. Supp. 2d 3654
Court for the District of New Jersey on July 20, 2005. The Court
found that the new BOP regulations were a “permissive
construction of the relevant statutes.” The Court emphasized that
the regulations are entitled to considerable deference and cited
Lopez v. Davis, 531 U.S. 230, 243-44 (2001), in support of its
decision. This appeal followed.3
II. Bureau of Prison Placement Policies and the Relevant
Statutory Provisions
This appeal turns on the interpretation of two statutes.
Under 18 U.S.C. § 3621(b), the BOP is vested with authority to
determine the location of an inmate’s imprisonment. That statute
not only grants the BOP placement authority, it lists factors for
consideration in making placement and transfer determinations:
(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) 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
(E.D.N.Y. 2005).
3
We have jurisdiction to review the dismissal of Woodall’s
petition pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise
plenary review over the District Court’s legal conclusions as no
evidentiary hearing was conducted by the District Court. See
Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002).
5
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.
In designating the place of imprisonment or making
transfers under this subsection, there shall be no
favoritism given to prisoners of high social or
economic status. The Bureau may at any time,
having regard for the same matters, direct the
transfer of a prisoner from one penal or correctional
facility to another.
18 U.S.C. § 3621 (emphasis added).
A more specific provision, 18 U.S.C. § 3624(c), describes
the BOP’s obligation to prepare prisoners for community re-entry
by, inter alia, placing them in community confinement:
(c) Pre-release custody. The Bureau of Prisons shall,
to the extent practicable, assure that a prisoner
serving a term of imprisonment spends a reasonable
part, not to exceed six months, of the last 10 per
centum of the term to be served under conditions
that will afford the prisoner a reasonable
opportunity to adjust to and prepare for the
prisoner’s re-entry into the community. The
authority provided by this subsection may be used to
place a prisoner in home confinement.
18 U.S.C. § 3624(c).
Prior to December 2002, the BOP regularly considered
prisoners for CCC placement for up to six months at the end of a
sentence, regardless of the total sentence length.4 “These
4
The BOP appears to consider all community confinement
facilities – including community confinement centers or halfway
6
practices were entirely routine, and were all but taken for granted
by all participants: the BOP, the Probation Office, the U.S.
Attorney’s Office, the defense bar, and the judiciary.” United
States v. Serpa, 251 F. Supp. 2d 988, 990 (D. Mass. 2003)
(citation omitted). However, on December 13, 2002, the
Department of Justice Office of Legal Counsel (“OLC”) issued a
memorandum concluding that the BOP’s practice of placing
some prisoners in CCCs for all or significant parts of their
sentences was contrary to the BOP’s statutory grant of authority.
The 2002 memo concluded that the BOP did not have
“general authority” under § 3621 to place an offender in
community confinement from the outset of his sentence or at any
time the BOP chooses. Instead, the memo reasoned that authority
to transfer a prisoner to a CCC is derived solely from § 3624, and
that the statute limits residence in a CCC to the lesser of 10
percent of the total sentence or six months. On December 20,
2002, the BOP followed the OLC’s advice and memorialized it.
The First Circuit and the Eighth Circuit found this 2002
policy unlawful because it did not recognize the BOP’s discretion
to transfer an inmate to a CCC at any time, and therefore contrary
to the plain meaning of § 3621. See Elwood v. Jeter, 386 F.3d
842 (8th Cir. 2004); Goldings v. Winn, 383 F.3d 17 (1st Cir.
2004). The rationale of these decisions was that the time
constraints of § 3624(c) limited only the affirmative obligation of
the BOP, not the agency’s discretion to place a prisoner in a CCC
for a longer period of time.
In response to decisions such as Elwood and Goldings, on
August 18, 2004, the BOP proposed new regulations
“announcing its categorical exercise of discretion for designating
inmates to community confinement when serving terms of
imprisonment.” 69 Fed. Reg. 51,213 (Aug. 18, 2004). While
acknowledging the BOP’s general discretion to place an inmate
at a CCC at any time, the 2005 regulations limit CCC placement
to the lesser of 10 percent of a prisoner’s total sentence or six
months, unless special statutory circumstances apply. Id. The
houses – as indistinguishable for purposes of this question. We
accept that understanding here and use the term “CCC” as
shorthand.
7
final rules were published on January 10, 2005, after Woodall’s
petition had been filed, and became effective on February 14,
2005. They, of course, apply to this case.
The final CCC designation regulations read as follows:
§ 570.20 What is the purpose of this subpart?
(a) This subpart provides the Bureau of Prisons’
(Bureau) categorical exercise of discretion for
designating inmates to community confinement. The
Bureau designates inmates to community
confinement only as part of pre-release custody and
programming which will afford the prisoner a
reasonable opportunity to adjust to and prepare for
re-entry into the community.
(b) As discussed in this subpart, the term
“community confinement” includes Community
Corrections Centers (CCC) (also known as “halfway
houses”) and home confinement.
§ 570.21 When will the Bureau designate
inmates to community confinement?
(a) The Bureau will designate inmates to
community confinement only as part of pre-release
custody and programming, during the last ten
percent of the prison sentence being served, not to
exceed six months.
(b) We may exceed these time-frames only when
specific Bureau programs allow greater periods of
community confinement, as provided by separate
statutory authority (for example, residential
substance abuse treatment program (18 U.S.C.
3621(e)(2)(A)), or shock incarceration program (18
U.S.C. 4046(c)).
28 C.F.R. §§ 570.20, 570.21 (emphasis added).
As explained above, the question before us is whether
these new regulations are contrary to, or a permissible
8
construction of, Congress’s directives as set out in 18 U.S.C. §
3621(b). Because we believe that the new policy does not allow
for full consideration of the factors plainly enumerated in §
3621(b), we conclude that they are not.
III. May Woodall Proceed under 28 U.S.C. § 2241?
We must first determine whether Woodall may proceed
under 28 U.S.C. § 2241. Though the government wants us to
address the merits of Woodall’s contentions, it feels constrained
to argue that the District Court lacked habeas jurisdiction to
consider Woodall’s petition because he is challenging the
“conditions” of his confinement or a routine prison transfer,
rather than the fact or duration of his sentence. It cites Supreme
Court and Third Circuit case law for the proposition that only a
challenge to the very fact or duration of a sentence may be
challenged in habeas. In response, Woodall argues that his claim
can be brought under § 2241 because it arises from the
“execution” of his sentence.
Resolution of this issue is far from clear, for there are
credible arguments on both sides of this complicated matter.
However, we are persuaded by the reasoning of the courts
holding that what is at issue here is the “execution” of Woodall’s
sentence.
We have ourselves held that § 2241 allows a federal
prisoner to challenge the “execution” of his sentence in habeas.
This was noted in Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.
2001), where we distinguished § 2255 from § 2241:
[F]ederal prisoners challenging some aspect of the
execution of their sentence, such as denial of parole,
may proceed under Section 2241. This difference
arises from the fact that Section 2255, which like
Section 2241 confers habeas corpus jurisdiction
over petitions from federal prisoners, is expressly
limited to challenges to the validity of the
petitioner’s sentence. Thus, Section 2241 is the only
statute that confers habeas jurisdiction to hear the
petition of a federal prisoner who is challenging not
the validity but the execution of his sentence.
9
(footnote omitted and emphasis added). We reiterated this
distinction in United States v. Eakman, 378 F.3d 294, 297 (3d
Cir. 2004).5 Still, the precise meaning of “execution of the
sentence” is hazy. In attempting to decipher it, we are informed
by the language of the Second, Sixth, Ninth, and Tenth Circuits,
all of which have found that prisoners challenging the manner of
their imprisonment may proceed under § 2241.
For example, in Jiminian v. Nash, 245 F.3d 144 (2d Cir.
2001), the Second Circuit opined: “A motion pursuant to § 2241
generally challenges the execution of a federal prisoner’s
sentence, including such matters as the administration of parole,
computation of a prisoner’s sentence by prison officials, prison
5
The government cites several cases for the proposition that
a prisoner’s challenge to the “conditions of his confinement” must
fall outside of habeas. See Nelson v. Campbell, 541 U.S. 637, 643
(2004); Preiser v. Rodriguez, 411 U.S. 475 (1973); Leamer v.
Fauver, 288 F.3d 532 (3d. Cir. 2002). However, even if what is at
issue here is “conditions of confinement,” these cases analyze only
the question whether a § 1983 action must be dismissed because
the claim asserted lies at the “core of habeas,” and determine only
when § 1983 provides no remedy, not when a prisoner is precluded
from filing a habeas petition.
Nelson provides little guidance on this question. In that case,
a prisoner filed an action under § 1983, claiming that the procedure
to be used to lethally inject him constituted cruel and unusual
punishment. The government contended that the inmate was
challenging his sentence and therefore could only seek relief in
habeas. The Supreme Court disagreed and held unanimously that
the action could be brought under § 1983. While the Court
discussed the difference between § 1983 and habeas, at no point
did it state that the prisoner could not have filed a habeas petition.
As the Court determined, the only question before it was “whether
§ 1983 [was] an appropriate vehicle.” Nelson, 541 U.S. at 639. As
the Ninth Circuit has noted, “The [Supreme] Court’s central
concern . . . has been with how far the general remedy provided by
§ 1983 may go before it intrudes into the more specific realm of
habeas, not the other way around.” Docken v. Chase, 393 F.3d
1024, 1028 (9th Cir. 2004).
10
disciplinary actions, prison transfers, type of detention and prison
conditions.” Id. at 147 (citing Chambers v. United States, 106
F.3d 472, 474-75 (2d Cir. 1997)). The Ninth Circuit has used
similar language in distinguishing between § 2255 and § 2241. In
Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000), the
Court noted that, in the case of a federal prisoner, motions
contesting the “legality” of a sentence must generally be filed
under § 2255 while challenges to the “manner, location, or
conditions of a sentence’s execution” must be brought pursuant
to § 2241.
The Sixth Circuit, in an opinion cited by us in Coady, has
also found an action under § 2241 appropriate for an inmate’s
challenge to a transfer cognate to the one at bar. Addressing a
claim that arose when the BOP threatened to move a prisoner
from a community treatment center to a “more secure facility,”
the Court found § 2241 appropriate because “the manner in
which the sentence was being executed” was challenged. See
United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). In
Coady, we cited Jalili for its proposition that a “challenge to
[the] place of imprisonment” is “properly brought under Section
2241.” 251 F.3d at 485. Similarly, the Tenth Circuit found a
petition under § 2241 proper where a prisoner challenged his
transfer from a Wyoming state-operated prison to a private Texas
facility. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.
2000) (“Such an attack, focusing on where his sentence will be
served, seems to fit better under the rubric of § 2241.”).6
Additionally, a number of district courts analyzing the 2005 BOP
regulations or the previous 2002 policy have discussed this
jurisdictional question and found that a § 2241 petition is the
proper mechanism for relief.7
6
In invalidating the BOP’s 2002 policy in Elwood v. Jeter,
386 F.3d 842, 844 (8th Cir. 2004), the Eighth Circuit accepted
Elwood’s § 2241 petition, but did not discuss this jurisdictional
issue. The First Circuit, in Goldings v. Winn, 383 F.3d 17 (1st Cir.
2004), also declared the 2002 policy unlawful but did not discuss
the source of the Court’s jurisdiction.
7
See, e.g., Pimentel v. Gonzalez, 367 F. Supp. 2d 365, 369-
71 (E.D.N.Y. 2005); United States v. Paige, 369 F. Supp. 2d 1257,
11
The circuits are not in agreement on this matter, however.
The Seventh Circuit has drawn a different line and apparently
would find a § 2241 petition improper here. In Richmond v.
Scibana, 387 F.3d 602 (7th Cir. 2004), the Court did not address
whether the petitioner was challenging the “execution” of his
sentence but did hold that a challenge to the BOP’s 2002 policy
could not lie in habeas. It emphasized that the petitioner did not
present a “claim of entitlement to be released.” Id. at 605.
We think that the better rule is that of the Second, Sixth,
Ninth, and Tenth Circuits, and of the district courts referred to in
note 8, supra. The approach of these courts is consistent with
notions of the plain meaning of the term “execution,” which is to
“put into effect” or “carry out.” See W EBSTER’S T HIRD N EW
INTERNATIONAL D ICTIONARY 794 (1993). Carrying out a sentence
through detention in a CCC is very different from carrying out a
sentence in an ordinary penal institution. More specifically, in
finding that Woodall’s action was properly brought under § 2241,
we determine that placement in a CCC represents more than a
simple transfer. Woodall’s petition crosses the line beyond a
challenge to, for example, a garden variety prison transfer.
The criteria for determining CCC placement are
instrumental in determining how a sentence will be “executed.”
CCCs and similar facilities, unlike other forms of incarceration,
are part of the phase of the corrections process focused on
reintegrating an inmate into society. The relevant statute
specifically provides that a prisoner should be placed in a CCC or
1259 (D. Mont. 2005) (“[A] federal criminal defendant seeking to
challenge the manner, location, or conditions of a sentence’s
execution must proceed with a petition for habeas corpus, brought
pursuant to § 2241 . . . .”); Franceski v. Bureau of Prisons, No. 04
Civ. 8667, 2005 U.S. Dist. LEXIS 5961, at *6-*13 (S.D.N.Y. Apr.
8, 2005); Norrito v. DeRosa, No. 04-610, 2004 U.S. Dist. LEXIS
28789, at *1 n.1 (D.N.J. Aug. 11, 2004); Grimaldi v. Menifee, No.
04 Civ. 1340, 2004 U.S. Dist. LEXIS 7455, at *6-*8 (S.D.N.Y.
Apr. 29, 2004); Zucker v. Menifee, No. 03 Civ. 10077, 2004 U.S.
Dist. LEXIS 724, at *8-*11 (S.D.N.Y. Jan. 21, 2004) (collecting
cases). A number of district courts have also accepted an inmate’s
§ 2241 petition without further discussion.
12
similar institution at the end of a prison sentence to “afford the
prisoner a reasonable opportunity to adjust to and prepare for . . .
re-entry into the community.” 18 U.S.C. § 3624. CCCs thus
satisfy different goals from other types of confinement. We have
noted the relatively lenient policies of CCCs as compared to more
traditional correctional facilities. CCC pre-release programs often
include an employment component under which a prisoner may
leave on a daily basis to work in the community. Inmates may be
eligible for weekend passes, overnight passes, or furloughs. See
United States v. Hillstrom, 988 F.2d 448 (3d Cir. 1993); see also
United States v. Latimer, 991 F.2d 1509, 1513 (9th Cir. 1993)
(emphasizing that community confinement is “qualitatively
different” from confinement in a traditional prison).
Given these considerations, and the weight of authority
from other circuits, especially Jalili, we conclude that Woodall’s
challenge to the BOP regulations here is a proper challenge to the
“execution” of his sentence, and that habeas jurisdiction lies.8
IV. The Statutory Question
We note at the outset that no court of appeals has
addressed the validity of the 2005 regulations. The district courts
are divided. Many have invalidated the 2005 regulations.9 On the
other hand, several district court opinions have upheld the
8
Woodall argues that if his challenge is not properly brought
in habeas, he is entitled to mandamus relief pursuant to 28 U.S.C.
§ 1361. Because we find the habeas action proper, we decline to
address this contention.
9
See, e.g., Baker v. Willingham, No. 3:04cv1923, 2005 U.S.
Dist. LEXIS 23468 (D. Conn. Sept. 16, 2005); Wiederhorn v.
Gonzales, No. 05-360-TC, 2005 U.S. Dist. LEXIS 15079 (D. Or.
May 9, 2005); United States v. Paige, 369 F. Supp. 2d 1257 (D.
Mont. 2005); Drew v. Menifee, No. 04 Civ. 9944, 2005 U.S. Dist.
LEXIS 3423 (S.D.N.Y. Mar. 4, 2005); Pimentel v. Gonzalez, 367
F. Supp. 2d 365 (E.D.N.Y. 2005); Cook v. Gonzales, No. 05-09-
AS, 2005 U.S. Dist. LEXIS 8771 (D. Or. Apr. 5, 2005); Crowley
v. Fed. Bureau of Prisons, 312 F. Supp. 2d 453 (S.D.N.Y. 2004).
13
regulations.10
We agree with the reasoning of those courts that have
found the regulations unlawful. The regulations do not allow the
BOP to consider the nature and circumstances of an inmate’s
offense, his or her history and pertinent characteristics, or most
importantly, any statement by the sentencing court concerning a
placement recommendation and the purposes for the sentence.
And yet, according to the text and history of § 3621, these factors
must be taken into account. The regulations are invalid because
the BOP may not categorically remove its ability to consider the
explicit factors set forth by Congress in § 3621(b) for making
placement and transfer determinations.11
The government argues that the BOP appropriately
exercised its “sweeping authority” in categorically declining to
consider inmates for CCC placement prior to the last 10 percent
or six months of a sentence. It submits that the BOP’s
interpretation is entitled to deference under Chevron U.S.A. Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and that
the 2005 regulations comport with and clarify congressional
intent. It relies on Lopez v. Davis, 531 U.S. 230, 243-44 (2001),
for support. The government also maintains that the § 3621(b)
factors are “nonexhaustive” and not mandatory, and that the BOP
will continue to consider them in placement decisions. It
contends that while the BOP was not required to consider the §
3621 factors in promulgating its rules, it did in fact consider “the
10
See, e.g., Charboneau v. Menifee, No. 05 Civ. 1900, 2005
U.S. Dist. LEXIS 21622 (S.D.N.Y. Sept. 28, 2005); Lee v. United
States, No. 04-0610-CG-C, 2005 U.S. Dist. LEXIS 27387 (S.D.
Ala. Sept. 6, 2005); Moss v. Apker, 376 F. Supp. 2d 416 (S.D.N.Y.
2005); Jackson v. Fed. Bureau of Prisons, No. 05-2339, 2005 U.S.
Dist. LEXIS 26724 (D.N.J. July 20, 2005); Troy v. Apker, No. 05
Civ. 1306, 2005 U.S. Dist. LEXIS 14275 (S.D.N.Y. June 30,
2005); Yip v. Fed. Bureau of Prisons, 363 F. Supp. 2d 548(E.D.N.Y. 2005).
11
These same factors apply to prison and CCC transfers, as
well as initial placements, given that Congress specified that
transfers may be made “having regard for the same matters.” See
18 U.S.C. § 3621(b).
14
statutory factors” in addition to others. We discuss these
construction arguments first and then turn to the Chevron
analysis.
A. The Plain Meaning and Legislative History of 18
U.S.C. § 3621(b)
Section 3621(b) provides that the BOP must consider at
least five factors in making placement decisions:
(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.
18 U.S.C. § 3621(b). Yet, under the regulations, these factors
cannot be fully considered because the amount of time an inmate
may spend in a CCC is categorically limited to the lesser of six
months or ten percent of a sentence without regard to
individualized circumstances.
The government argues that the use of the word “may” at
the beginning of § 3621(b), rather than “shall,” is determinative
in proving that consideration of the factors is essentially optional.
We believe that this narrow reading ignores the context of the
statute. See Deal v. United States, 508 U.S. 129, 132 (1993)
(noting the “fundamental principle of statutory construction . . .
that the meaning of a word cannot be determined in isolation, but
must be drawn from the context in which it is used”). A common-
sense reading of the text – especially when combined with the
legislative history – makes clear that the BOP is required to
consider each factor. “May” refers to the ability of the BOP to
15
make ultimate placement designations, not to the § 3621 factors.
The word “may” is a full fifty words away from the
considerations, and its effect is separated from the factors with a
comma.
Additionally, the use of the word “and” before the final
factor in the five-part list indicates that Congress intended for the
BOP to weigh all of the factors listed. See Lesnick v. Menifee, 05
Civ. 4719, 2005 U.S. Dist. LEXIS 23183, at *13 (S.D.N.Y. Oct.
11, 2005). In sum, we believe the statute indicates that the BOP
may place a prisoner where it wishes, so long as it considers the
factors enumerated in § 3621.
Our reading is bolstered by the statute’s legislative history,
which states that the BOP is “specifically required” to consider
the § 3621(b) factors – including any statement by the court that
imposed the sentence – before it can properly place or transfer an
inmate. A Report of the Senate Judiciary Committee,
accompanying the enactment of § 3621, is informative. The
report states:
In determining the availability or suitability of the
facility selected, the Bureau is specifically required
to consider such factors as the resources of the
facility considered, the nature and circumstances of
the offense, the history and characteristics of the
prisoner, the statements made by the sentencing
court concerning the purposes for imprisonment in a
particular case, any recommendations as to type of
facility made by the court, and any pertinent policy
statements issued by the sentencing commission
pursuant to proposed 28 U.S.C. § 994(a)(2). After
considering these factors, the Bureau of Prisons
may designate the place of imprisonment in an
appropriate type of facility, or may transfer the
offender to another appropriate facility.
S. R EP. N O. 98-225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,
3324-25 (emphasis added).
This language is clear – the BOP must consider all of the
listed factors. The report continues:
16
The Committee, by listing factors for the Bureau to
consider in determining the appropriateness or
suitability of any available facility, does not intend
to restrict or limit the Bureau in the exercise of its
existing discretion so long as the facility meets the
minimum standards of health and habitability of the
Bureau, but intends simply to set forth the
appropriate factors that the Bureau should consider
in making the designations.
Id. at 3325 (emphasis added). The Senate report supports the
proposition that Congress did not intend to limit the BOP’s
overall placement discretion to “designate the place of [a]
prisoner’s imprisonment.” However, it is also clear that, before
exercising that discretion, the BOP “should consider” each of the
§ 3621 factors. Because the 2005 regulations do not allow the
BOP to consider the factors enumerated in § 3621, they are
invalid.
B. Lopez v. Davis
Both the government and the District Court rely on Lopez,
531 U.S. at 243-44, for the proposition that the BOP may
categorically exercise its discretion in placement matters, and that
it properly utilized that discretion here. In Lopez, the Supreme
Court considered and upheld the validity of a BOP rule excluding
certain inmates from a discretionary early-release program. Id. at
243-44. The governing statute in that case, 18 U.S.C. §
3621(e)(2)(B), provided that the BOP may reduce the prison term
of an inmate convicted of a “nonviolent offense” if the prisoner
successfully completes a substance abuse program. Id. at 232.
The BOP implemented a regulation categorically denying early
release to prisoners convicted of a felony involving “the carrying,
possession, or use of a firearm.” Id. (quoting 28 C.F.R. §
550.58(a)(1)(vi)(B)). In upholding the regulation, the Court held
that the BOP permissibly defined “nonviolent offense” to exclude
inmates who possessed firearms. Id. at 235-36. The statute gave
the BOP the ability to offer pre-release to some inmates;
therefore, the Court reasoned that it was permissible for the BOP
to use that discretion to delineate an additional category of
17
inmates who were ineligible for that release. Id. at 238.
In Lopez, the statute clearly demonstrated that Congress
was worried about allowing possibly violent inmates to become
eligible for pre-release. The BOP’s rules reflected that concern
and seemed to provide a way to advance it. The BOP can make
no such claim here because the 2005 regulations do not further
the factors in the BOP’s enabling statute – they reject them. See
Pimentel, 367 F. Supp. 2d at 374; Lesnick, 2005 U.S. Dist.
LEXIS 23183, at *25-*27; Baker v. Willingham, No. 3:04cv1923,
2005 U.S. Dist. LEXIS 23468, at *20-*21 (D. Conn. Sept. 16,
2005).
In Lopez, for example, the BOP argued that because
Congress did not address how the Bureau should exercise its
discretion, it could categorically exclude certain inmates from
pre-release eligibility. The Court explained that individualized
consideration for each particular inmate was not necessary,
agreeing with the Eighth Circuit that “[t]he statute grants no
entitlement to any inmate or class of inmates . . . and it does not
instruct the Bureau to make ‘individual, rather than categorical,
assessments of eligibility for inmates convicted of nonviolent
offenses.’” 531 U.S. at 237 (citation omitted). The Court
emphasized that “Congress left the question unaddressed” and
“has not identified any further circumstance in which the Bureau
either must grant the reduction or is forbidden to do so.” Id. at
240, 242.
Here, in contrast, Congress specifically delineated factors
to be taken into account by the BOP in determining where an
inmate is placed. Worthy of special mention is the
recommendation of the sentencing judge. United States District
Judges take their sentencing responsibilities very seriously and
are familiar with the various BOP institutions and programs.
Their recommendations as to the execution of sentences are
carefully thought out and are important to them. The significance
of this aspect of the sentencing process is highlighted by the
acknowledgment of the regional counsel of the BOP at oral
argument that the BOP follows judicial recommendations in
approximately 85-90 percent of all cases. Here, however, the
requirement that the BOP consider a sentencing judge’s
recommendation cannot be satisfied without an individualized,
case-by-case inquiry that is impossible under the regulations.
18
The District Court and the government cite the following
passage from Lopez in support of the argument that the
circumstances here were contemplated by the Court: “‘Even if a
statutory scheme requires individualized determinations,’ which
this scheme does not, ‘the decisionmaker has the authority to rely
on rulemaking to resolve certain issues of general applicability
unless Congress clearly expresses an intent to withhold that
authority.’” Lopez, 531 U.S. at 243-44 (quoting Am. Hosp. Ass’n
v. NLRB, 499 U.S. 606, 612 (1991)). But sentencing
recommendations and other individual factors, like those at play
in Woodall’s case, are not generally applicable. Moreover,
Congress did appear to express an intent to withhold from the
BOP the authority to make CCC placements without the guidance
of the statutory factors.
In sum, individual determinations are required by §
3621(b). Lopez therefore does not control. While the BOP may
exercise considerable discretion, it must do so using the factors
the Congress has specifically enumerated.
C. The BOP’s Arguments that the § 3621(b) Factors
Are Not Mandatory and that it May Consider
Additional Factors in Placement Decisions
The government argues that the BOP may categorically
remove consideration of the § 3621(b) factors because these
factors are not mandatory. As support, both the government and
the commentary accompanying the BOP’s proposed rules stress
that the BOP can always consider additional factors in making
CCC determinations. See 69 Fed. Reg. at 51,213 (“Section
3621(b) provides a nonexclusive list of factors that the bureau is
to consider . . . .”). We find this argument unpersuasive. The
question whether the BOP may consider additional factors is
separate and unrelated to the question whether it can ignore
altogether the very factors delineated by Congress in the
governing statute itself. Neither the BOP nor the government has
cited a single indication that Congress felt the BOP could
categorically refuse to consider in full one of the factors
explicitly enumerated in § 3621.
In the commentary accompanying its final regulations, and
in response to criticism of the proposed rule, the BOP stated that
19
it would “continue to evaluate” the § 3621(b) factors “when
making individualized designations to appropriate Bureau
facilities.” 70 Fed. Reg, 1659, 1660 (Jan. 10, 2005). The
Government similarly states that the BOP continues to consider
the “nonexhaustive list” when making placement decisions.
However, as stated above, it is impossible for each of these
factors, particularly the sentencing judge’s recommendations, to
be taken into account in CCC placements under the new
regulations. While the sentencing court here recommended six
months of halfway house placement, under the regulations, that
recommendation cannot be considered in full. In fact, no
recommendation of a CCC placement exceeding six months or
ten percent of a sentence can be considered. It is not enough for
the BOP to consider the statutory factors only when placing
prisoners in non-CCC facilities – they must be considered in
every placement.
D. Consideration of the Statutory Factors in
Promulgating the 2005 Rules
The BOP has stated, and the District Court agreed, that it
considered the statutory factors in promulgating the 2005 rules.
69 Fed. Reg. at 51,214 (“The Bureau has carefully considered all
of the statutorily-specified factors, as well as the additional
considerations that it identified as pertinent.”) However, while
the commentary accompanying the proposed and final rules
specifically discusses some of the § 3621 factors – for example
prison resources and Sentencing Commission policy statements –
at no point does the BOP take into account the requirement that it
consider the particular circumstances of individual inmates. By
definition, particular circumstances cannot be considered in
promulgating a blanket rule. Notably, Congress expressed an
intent that the BOP take into account the sentencing judge’s
recommendation. By its very nature, this requires an
individualized determination for each prisoner that the new
regulations categorically do not allow. It is simply not possible to
consider individualized circumstances in the drafting room before
a prisoner even enters the criminal justice system.
E. Chevron Analysis
20
Our review of an agency’s interpretation of its governing
statute is normally subject to Chevron deference. This standard of
review requires a two-step inquiry:
First, always, is the question whether Congress has
directly spoken to the precise question at issue. If
the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of
Congress. If, however, the court determines
Congress has not directly addressed the precise
question at issue, the court does not simply impose
its own construction on the statute, as would be
necessary in the absence of an administrative
interpretation. Rather, if the statute is silent or
ambiguous with respect to the specific issue, the
question for the court is whether the agency’s
answer is based on a permissible construction of the
statute.
Chevron, 467 U.S. at 842-43.
For the reasons stated above, it appears to us that the
BOP’s regulations do not meet the first prong of the Chevron
test. This first prong of Chevron asks whether “the intent of
Congress is clear” as to the question at issue. Here, considering
the language of § 3621(b), and finding support in the statute’s
legislative history, we believe that it is. To be sure, the BOP has
been granted broad discretion in placement matters. However,
“[e]ven for an agency able to claim all the authority possible
under Chevron, deference to its statutory interpretation is called
for only when the devices of judicial construction have been tried
and found to yield no clear sense of congressional intent.” Gen.
Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004). Here, we
are faced with a statute providing that the BOP must consider
several factors in CCC placement, and a regulation providing that
the agency may not consider those factors in full. The conflict
between the regulations and the statute seems unavoidable.
However, even assuming the statute is ambiguous, we do
not find the regulations to be “based on a permissible
construction of the statute.” See Chevron, 467 U.S. at 843.
21
Therefore, they cannot pass the second prong of Chevron. Under
this second step, “we must determine whether the regulation[s]
harmonize[] with the plain language of the statute, its origin, and
purpose.” Zheng v. Gonzales, 422 F.3d 98, 119 (3d Cir. 2005)
(citation and internal quotation marks omitted). For the reasons
stated above, taking into consideration the language and purpose
of the statute, as well as its legislative history, we find harmony
lacking.12 We do not believe that the regulations are a permissible
construction because they fail to take into account Congress’s
indications that certain individualized factors – including a
sentencing court’s recommendations – should be considered in
the BOP’s placement and transfer scheme. Therefore, the
regulations are not “reasonable in light of the legislature’s
revealed design.” Id. at 116 (quoting NationsBank of North
Carolina, N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251,
257 (1995)). We thus conclude that even if the BOP regulations
pass the first prong of the Chevron analysis, they fail to meet the
second.
Of course, Chevron and its progeny recognize the wide
deference granted to agencies such as the BOP in administering
their governing statutes, and we are well aware of the expertise of
the Bureau of Prisons in matters concerning prison administration
and inmate placement. However, we are also mindful that the
Bureau cannot depart from the clearly expressed intent of
Congress, including its desire that several factors, one of which is
the recommendation of a sentencing judge, be considered in
placement designations. To accept the BOP’s argument would be
to ignore that intent as embodied in the statute’s plain language
and legislative history.
In sum, while the BOP does have the discretion to refuse
12
It is not entirely clear to what extent it is appropriate for us
to consider legislative history in analyzing a regulation under the
first prong of Chevron. See Santiago v. GMAC Mortg. Group, Inc.,
417 F.3d 384, 387 n.3 (3d Cir. 2005). However, we note both the
use of legislative history by the Supreme Court in FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 133, 137 (2000), and
also the fact that we analyze the relevant regulations under both
prongs of the Chevron analysis.
22
to place Woodall in a CCC for the last six months of his sentence,
the exercise of that discretion must be based, at least in part, on
the § 3621(b) factors.13
F. The Dissent’s Temporal Limitation Arguments
The dissent argues that the § 3621(b) factors need not be
considered by the BOP until an inmate transfer is “actually
considered.” We disagree. First, this argument ignores the fact
that in promulgating the 2005 regulations, the BOP did “actually
consider” the question of CCC placement. The BOP
“considered” the appropriateness of more lengthy CCC
placements for all current and future inmates, and did so without
properly acknowledging the factors specifically designated by
Congress in § 3621(b). See Baker, 2005 U.S. Dist. LEXIS 23468,
at *15 (“[A]lthough the BOP is not required to transfer a
prisoner at any specific time, it is required to make decisions
regarding transfer considering the statutory factors. A blanket
failure to consider such factors and exercise discretion
accordingly thus violates the statute and its underlying policy.”).
The dissent cites Yip, 363 F. Supp. 2d at 552, in addition
to other cases, for the proposition that the BOP has simply
identified a category of prisoners – those not yet required by §
3624(b) to be considered for CCC transfers – and “created a rule
denying transfer to all of them.” But in denying transfer to
inmates generally, the BOP clearly considered the question of
transfer to begin with. It did so, we think in error, without
reference to the mandatory § 3621(b) factors. Those factors
cannot all be considered in a blanket promulgation.
Second, we believe that the dissent takes a crabbed view
13
Woodall also asserts that the new regulations violate the
Due Process and Ex Post Facto Clauses of the Constitution. We do
not need to reach these issues and decline to address them under
the principles set forth in Ashwander v. Tennessee Valley
Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)
(“The Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some other
ground upon which the case may be disposed of.”).
23
of the BOP’s governing statute. The statute as a whole, if it is to
have practical effect, indicates that the factors enumerated must
be considered in making determinations regarding where to
initially place an inmate, as well as whether or not to transfer
him. As is persuasively articulated in Lesnick v. Menifee, 2005
U.S. Dist. LEXIS 23183, Congress “express[ed] an intent
regarding the process by which the BOP should designate
inmates to CCCs.” Id. at *11 (emphasis added) (citing Goldings,
383 F.3d at 28). The congressional intent here is clear:
determinations regarding the placement scheme – including
where a prisoner is held, and when transfer is appropriate – must
take into consideration individualized circumstances. The statute
requires an individualized process that cannot possibly occur
under the dissent’s narrow interpretation.14
The dissent falls back on the language of § 3624(c) and
argues that when the lesser of six months or ten percent of an
inmate’s sentence remains, and only then, the BOP must consider
the § 3621(b) factors. However, § 3624 does not determine when
the BOP should consider CCC placement, but when it must
provide it. The clear language of § 3624(c) mandates that the
BOP “shall” assure that a prisoner is given appropriate pre-
release conditions that are focused on re-entry, if “practicable.”
The statute requires the BOP not just to consider, but to actually
place an inmate in a CCC or like facility, during the last ten
percent or six months of the sentence, when that is possible.
Under the dissent’s rationale, the temporal references in §
3624(c), which were meant to create an obligation regarding
CCC placement, swallow the central provisions of § 3621(b).
These § 3621(b) provisions were meant to guide the transfer
scheme more generally.
In short, we conclude that the § 3621(b) factors apply to
BOP determinations regarding whether or not initial placements
or transfers are appropriate. We thus do not find that the factors
14
Essentially, the dissent argues that the BOP need not
consider the statutory factors unless it has basically made a transfer
decision or is required to make such a decision. Under that
interpretation, the factors would often be surplusage. Any time the
BOP considered a transfer but denied it, it could ignore the §
3621(b) factors entirely.
24
are limited by the temporal references in § 3624.
V. Woodall’s Remedy
We have held that the BOP may transfer an inmate to a
CCC or like facility prior to the last six months or ten percent of
his sentence. In exercising its discretion in this matter, the BOP
must consider the factors set forth in § 3621(b). However, that
the BOP may assign a prisoner to a CCC does not mean that it
must. Therefore, the appropriate remedy is an order requiring the
BOP to consider – in good faith – whether or not Woodall should
be transferred to a CCC. In making this decision, the BOP should
consider the sentencing judge’s recommendation and the other §
3621 factors, as well as any other appropriate factors the BOP
routinely considers. This should be done without reference to the
BOP’s 2002 and 2005 policies. It should also be done
immediately given that Woodall’s six-month CCC placement
would already have started. As noted above, Woodall is
scheduled to be transferred to a CCC in January, and to be
released on April 3, 2006. Accordingly, we will vacate the
District Court’s order and remand with instructions to grant the
writ of habeas corpus conditioned upon the BOP’s immediate
reconsideration of the decision as to whether to transfer Woodall
to a CCC under the § 3621 factors. The mandate shall issue
forthwith.
FUENTES, Circuit Judge, dissenting.
I agree with the majority that the District Court had
jurisdiction in this case under 28 U.S.C. § 2241, and that 18
U.S.C. § 3621(b) requires the BOP to consider each of the
factors listed in that statute in designating the place of an
inmate’s imprisonment or transfer. However, I dissent from the
majority’s invalidation of the BOP’s February 2005 regulation
because I find that the § 3621(b) factors need not be considered
by the BOP until an inmate is actually considered for a transfer,
and that the BOP is not required to consider any inmate for
transfer to a CCC until the lesser of six months or ten percent of
an inmate’s sentence remains.
25
Under the language of § 3621(b), the BOP “may”
designate an inmate to any approved facility at any time, and as
the majority convincingly explains, the agency must consider the
listed factors when it makes a designation. The statute does not
require the BOP to make or consider such a designation at any
particular time, however. The only relevant temporal requirement
arises in 18 U.S.C. § 3624(c), which requires the BOP
to the extent practicable, [to] assure that a prisoner
serving a term of imprisonment spends a reasonable
part, not to exceed six months, of the last 10 per
centum of the term to be served under conditions
that will afford the prisoner a reasonable
opportunity to adjust to and prepare for the
prisoner’s re-entry into the community.
Thus, when the lesser of six months or ten percent of an inmate’s
sentence remains, the BOP must consider that inmate for transfer,
and in doing so, must consider each of the factors listed in §
3621(b). Until that point, however, the BOP may categorically
preclude the consideration of any inmate for CCC transfer
without reference to the § 3621(b) factors, under the Supreme
Court’s holding in Lopez.15
1
The majority argues that in promulgating the 2005
regulation, the BOP considered transfers as to all inmates, and
was therefore required to take the § 3621(b) factors into account.
The text of § 3621(b) clearly relates to individual prisoner
placement decisions rather than general regulations, however.
See § 3621(b) (“The Bureau of Prisons shall designate the place of
the prisoner’s imprisonment. The Bureau may designate any available
penal or correctional facility . . . .”). This language does not speak
one way or the other to the permissibility of a blanket prohibition
on all inmate transfers for a certain time period.
Relatedly, the majority suggests that to effectuate
congressional intent, § 3621(b) must be read broadly to require
the BOP to consider individualized circumstances whenever
inmate placement is in any way implicated. The plain language
of the statute simply does not support such a reading. The
requirement that the BOP consider the § 3621(b) factors is
26
The February 2005 BOP regulation has not yet been
considered by another circuit court, but several district courts
have relied on this reasoning in upholding the regulation. See,
e.g., Yip v. Fed. Bureau of Prisons, 363 F.Supp.2d 548, 552
(E.D.N.Y. 2005) (“[A]ssuming arguendo that there were a
requirement that the BOP make individual determinations when
transferring inmates, it would apply only when the BOP has
elected to consider whether to make a transfer. Nothing in
Section 3621(b) requires the BOP to consider transferring any
inmate under its custody prior to the point identified in 18 U.S.C.
3624(c).”); id. (“The BOP has identified a category of prisoners –
inmates who are not yet required to be considered for transfer to a
CCC under Section 3624(c), but are eligible under Section
3621(b) – and created a rule denying transfer to all of them, in
conflict with no identified directive of Congress.”); Levine v.
Menifee, No. 05-1902, 2005 WL 1384021, at *5 (S.D.N.Y. Jun.
9, 2005) (“Because the BOP is under no obligation to consider
transferring any inmate to any facility under § 3621(b), it is
reasonable to conclude that the BOP is not prohibited from
excluding certain categories of inmates from such consideration
as long as the categorization is not on the basis of social or
economic status.”); Charboneau v. Menifee, No. 05-1900, 2005
WL 2385862, at *4 (S.D.N.Y. Sept. 28, 2005) (noting that §
3621(b) does not require the BOP “to consider transferring
petitioner to a CCC before the 10% date mandated by 18 U.S.C. §
3624(c)”); Harris v. Fed. Bureau of Prisons, No. 05-323, 2005
WL 2562970, at *10 (D.N.J. Oct. 6, 2005) (“[N]othing in §
3621(b) requires the BOP to consider transferring any federal
prisoner in its custody before the transitional point set forth in 18
U.S.C. § 3624(c).”). See also Goldings v. Winn, 383 F.3d 17, 33
(1st Cir. 2004) (“Even if the statutory criteria for making
assignments and transfers could be read to guarantee some sort of
individualized treatment, it is apparent to me that BOP would still
have the authority to make a categorical rule excluding some or
triggered only when the BOP “designate[s] the place of the
prisoner’s imprisonment”, and §3621(b) says nothing about when
such a designation must be made. The statute therefore cannot be
read to preclude a general temporal limitation on inmate
transfers.
27
all CCC placements, except as required for end of sentence
placements governed by § 3624(c).”) (Howard, J., concurring in
decision to strike down December 2002 BOP policy).
I join these courts in concluding that the February 2005
BOP regulation is valid because the agency need not consider the
§ 3621(b) factors until the lesser of six months or ten percent of
an inmate’s sentence remains. I also find that petitioner’s Due
Process and Ex Post Facto claims are without merit and require
no further discussion. For these reasons, I would affirm the
holding of the district court denying the petition for habeas and
mandamus.
28