Ferguson v. Apker

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-7-2005
Ferguson v. Apker
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4556
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Recommended Citation
"Ferguson v. Apker" (2005). 2005 Decisions. Paper 1057.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1057
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BPS-234 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4556
________________
FARLEY L. FERGUSON,
Appellant
v.
CRAIG APKER, Warden
_______________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 04-cv-02164 )
District Judge: Honorable A. Richard Caputo
_______________________________________
Submitted For Possible Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
May 5, 2005
Before: RENDELL, FISHER and VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: June 7, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Farley L. Ferguson appeals from an order of the United States District Court for
the Middle District of Pennsylvania denying his petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2241. When he filed his section 2241 petition, Ferguson was an
inmate at Allenwood Federal Prison Camp in Pennsylvania, serving a 12-month sentence
for failure to pay taxes and to file income tax returns.
On December 20, 2002, the Federal Bureau of Prisons (BOP) adopted a policy
limiting a prisoner’s Community Corrections Center (CCC) placement to the lesser of
10% of a prisoner’s sentence or six months. See 18 U.S.C. § 3624(c). Before the policy
change, a prisoner was eligible for up to 6 months of CCC custody, even if the 6 months
constituted more than 10% of the prisoner’s sentence.
In applying the new policy, the BOP set Ferguson’s CCC placement for April 12,
2005, the final 30 days of his sentence. In his section 2241 petition, Ferguson claimed
that he was entitled to a CCC placement for the final 6 months of his sentence. Ferguson
requested that he be transferred to a CCC facility, and also requested that the BOP
consider him under the criteria in place before the December 2002 policy change.
The District Court explained that the appropriate remedy in this case would be to
grant the writ and direct the BOP to consider Ferguson for CCC placement under the pre-
December 2002 policy. The District Court then concluded that Ferguson had already
received the relief the Court would have awarded him because the BOP had conducted a
Special Team Meeting on October 12, 2004, to consider Ferguson’s CCC placement
under its pre-December 2002 policy. Moreover, the District Court reviewed the factors
considered by the BOP in its reconsideration of Ferguson’s CCC placement date, and
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concluded that the BOP’s decision was neither irrational nor arbitrary, and that there was
thus no basis for interfering with the BOP’s decision. Accordingly, the District Court
denied relief. Ferguson timely filed this appeal.
We agree with the District Court that there is no basis for interfering with the
BOP’s decision regarding Ferguson’s CCC placement date. Assuming arguendo that
Ferguson was entitled to reconsideration under the prior BOP policy, the record reflects
that the BOP considered Ferguson for CCC custody under its pre-December 2002 policy
on October 12, 2004, and Ferguson has thus been afforded the relief to which he would
have been entitled. Ferguson did not have a right to immediate CCC placement; rather,
he only had a right to have the BOP consider whether he should be transferred to a CCC.
On appeal Ferguson argues that the District Court should have converted his
section 2241 petition into a civil rights action. See Richmond v. Scibana, 387 F.3d 602(7th Cir. 2004) (holding that a prisoner may not use a section 2241 habeas proceeding to
contest the BOP’s CCC placement policy). We see no need to address this issue because
the BOP expressly elected to address the merits of Ferguson’s claims. Thus, regardless of
whether this action was proper as a section 2241 habeas proceeding, or whether it should
have been brought as a civil rights action, the District Court properly reached the merits
and denied relief. To the extent that Ferguson attempted to raise an equal protection
claim, that claim lacks merit. Ferguson has not alleged that other similarly situated
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prisoners were released into CCC custody for 6 months even though their CCC placement
constituted more than 10% of their sentence.
In sum, because Ferguson’s appeal of the denial of his petition presents “no
substantial question,” 3d Cir. LAR 27.4 and I.O.P. 10.6, we will summarily affirm the
District Court’s judgment.
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