1

 As respondent correctly points out, the only proper respondent in this action is the

person having custody of petitioner, Warden Joseph Smith. See 28 U.S.C. §§ 2242, 2243;

Fed. R. Civ. P. 81(a)(2). 

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

GEORGE S. BUSTAMANTE, :

:

Petitioner :

:

v. : CIVIL NO. 3:CV-05-0291

:

FEDERAL BUREAU OF PRISONS, ET AL.,

1

: (Judge Kosik)

:

Respondents :

M E M O R A N D U M

Introduction

George S. Bustamante is a federal inmate currently confined at the United States

Penitentiary at Lewisburg (USP-Lewisburg), Pennsylvania. He filed this habeas corpus petition

pursuant to 28 U.S.C. § 2241 on February 9, 2005 challenging the Bureau of Prison’s (“BOP”)

current policy regarding the release of inmates to a halfway house or Community Corrections

Center (“CCC”). The required filing fee has been paid. In the petition, Bustamante asks the

court to grant his request for CCC placement and to order the BOP to approve him for a

minimum of six months placement in a CCC. 

Case 4:05-cv-00291-EMK-LQ Document 12 Filed 08/29/05 Page 1 of 7
2

On April 14, 2005, service of the petition was directed. (Doc. 4.) Following an extension

of time, a response to the petition was filed on May 18, 2005. (Doc. 10.) A traverse was

thereafter submitted on June 6, 2005. (Doc. 11.) 

Bustamante was convicted of Bank Robbery in violation of 18 U.S.C. § 2113(a) and

received a sentence of 210 months imprisonment followed by a three year period of supervised

release. (Doc. 9, Ex. A, Baumgartel Decl. at ¶ 4.) He is currently projected to be released on

April 3, 2006, via Good Conduct Time Release. His pre-release preparation date is October 3,

2005. (Id.) The BOP is currently in the process of recommending and approving Bustamante

for 180 days placement in a CCC. (Id. at ¶¶ 5-6, and pp. 11-13.) Bustamante was seen for a

180-day Program Review on March 28, 2005. This program review recommended that he be

given consideration for a maximum six-month placement in a CCC with an anticipated transfer

date of October 3, 2005. The long term goal section for his review noted that he “Receive 6

month CCC Placement.” (Id. at ¶5, Attach. 2.) His “CCC Packet” is pending completion and

approval. According to the BOP, it is anticipated that Bustamante will be transferred to a

halfway house on or about October 3, 2005. For the reasons that follow, the instant petition will

be dismissed.

Discussion

Federal law provides for the placement of an inmate in pre-release custody near the end

of his sentence to allow prisoners an opportunity to adjust to the community prior to their

release. 18 U.S.C. § 3624(c) provides that to the extent practicable, such placement will take

place during the last ten percent of a prisoner’s sentence, not to exceed 6 months:

Case 4:05-cv-00291-EMK-LQ Document 12 Filed 08/29/05 Page 2 of 7
3

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. 

18 U.S.C. § 3624(c). 

The customary practice of the BOP was to consider prisoners for placement in CCCs for

as much as the last six months of their sentences, even if this occurred before the prisoner had

served 10% of his sentence (“Six Month Rule”). However, that practice ended on December

20, 2002, following a Memorandum Opinion issued by the Office of Legal Counsel of the United

States Department of Justice (“OLC Memorandum”), which concluded that the Six Month Rule

was improper under the plain language of § 3624(c). The OLC Memorandum stated that “[t]he

authority conferred under Section 3624(c) to transfer a prisoner to a non-prison site is clearly

limited to a period ‘not to exceed six months, of the last 10 per centum of the time to be served,’

18 U.S.C. § 1324, and we see no basis for disregarding this time limitation.” (Doc. 9, Ex. B.)

This abrupt change in the BOP practice of designating inmates to CCCs resulted in a

flurry of litigation throughout the federal courts because inmates were not transferred to a CCC

for any longer than a reasonable portion of the last ten percent of the inmates’ sentences, not

to exceed six months. A number of courts, including this one, rejected the application of the

10% Rule and ordered the BOP to reassess inmates’ CCC referrals according to the preDecember 2002 policy. See Serafini v. Dodrill, 3:CV-04-0311, slip op. (M.D. Pa. Feb. 23,

2004)(Vanaskie, C.J.); Fagiolo v. Smith, 3:CV-04-0148, slip op. (M.D. Pa. Mar. 12,

Case 4:05-cv-00291-EMK-LQ Document 12 Filed 08/29/05 Page 3 of 7
2

 On March 17, 2005, the Third Circuit Court of Appeals issued an unreported decision

acknowledging that the Third Circuit had yet to address this issue and finding no need to do so

in their decision at that time. See Mendez v. Apker, slip op. No. 04-4719 (3d Cir., March 17,

2005). 

4

2004)(Conaboy, J.);Livingston v. Dodrill, 3:CV-04-0150, slip op. (M.D. Pa. Mar. 18, 2004);

Calascione v. Dodrill, 3:CV-04-0201, slip op. (M.D. Pa. May 3, 2004)(Nealon, J.).2 Some courts

held the BOP violated the Administrative Procedures Act (“APA”) when it initiated the

December 2002 policy change since no public review and comment period had been allowed. 

The BOP responded with proposed new regulations in August of 2004 which, at least in

part, attempted to deal with the judicial critiques of its application of the OLC Memorandum. 

The proposed rules stated that the BOP was exercising its discretion by limiting CCC

placement to the last ten percent of an inmate’s sentence, not to exceed six months and was

published in the Federal Register for public comment. Subsequently, in January 2005, notice of

the final rule was published and went into effect February 14, 2005. See Community

Confinement, 69 Fed. Reg. 51, 213 (Aug. 18, 2004) and 70 Fed. Reg. 1659 (Jan. 10, 2005). 

(Id., Exs. D, E.) 

The new rule amended 28 C.F.R. § 570 regarding the maximum halfway house time an

inmate may receive. In particular, 28 C.F.R. § 570.21 now provides:

(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

Case 4:05-cv-00291-EMK-LQ Document 12 Filed 08/29/05 Page 4 of 7
3

 “Article III requires that an actual controversy exist through all stages of litigation.” 

United States v. Kissinger, 309 F.3d 179, 180 93d Cir. 2002). 

5

confinement, as provided by separate statutory authority

(for example, residential substance abuse treatment

program (18 U.S.C. § 3621(e)(s)(A)), or shock incarceration

program (18 U.S.C. § 4046(c)). 

In the instant case, the court agrees with respondents that the instant petition is subject

to dismissal as no case or controversy currently exists in the pending matter. Bustamante

seeks to have the court order the BOP to approve him for a minimum six-month placement in a

CCC. In following the precedent established by this court in rejecting the validity of the OLC

Memo, the remedy would be to direct the BOP to consider inmates for CCC placement in

accordance with factors taken into account by the BOP prior to December 2002. However, in

the instant case, Bustamante fails to demonstrate, or for that matter even allege, that the BOP

will not be placing him in a CCC for six months. In fact, every indication in the record

establishes that he has been considered for the six month placement and is waiting to be

approved at this time. According to the declaration submitted by respondents, the BOP is

currently in the process of approving Bustamante for the 180 day placement and no final

decision to the contrary has been made. As such, no case or controversy presently exists in

this case.3 It is only after Bustamante’s transfer date has been finalized/ he has been denied

the desired CCC placement time and exhausted his available administrative remedies that this

matter becomes ripe for review by the court. However, even assuming Bustamante is entitled

to consideration for CCC placement under the BOP’s prior policy, the record indicates that

Case 4:05-cv-00291-EMK-LQ Document 12 Filed 08/29/05 Page 5 of 7
6

Bustamante will be afforded all the relief to which he would be entitled in this action - - the six

months CCC placement. 

To the extent Bustamante challenges the BOP’s revised interpretation of its halfway

house placement policy as violating the public notice and comment requirements of the APA,

the court rejects his argument. While notice and comment is required when an agency

promulgates substantive rules or regulations, it is not required for interpretive rules, general

statements of policy, or rules of agency procedure or practice. See 5 U.S.C. § 553(b)(3)(A);

see also Dismas Charities v. U.S. Department of Justice, 401 F.3d 666, 679-80 (Mar. 11,

2005)(finding that the BOP’s December 2002 policy change did not violate the APA since it was

an example of an interpretive rule.)

Based on the foregoing, the petition will be dismissed. An appropriate Order is

attached.

Case 4:05-cv-00291-EMK-LQ Document 12 Filed 08/29/05 Page 6 of 7
UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

GEORGE S. BUSTAMANTE, :

:

Petitioner :

:

v. : CIVIL NO. 3:CV-05-0291 

:

FEDERAL BUREAU OF PRISONS, ET AL., : (Judge Kosik)

:

Respondents :

O R D E R

NOW, THIS 29th DAY OF AUGUST, 2005, in accordance with the attached

Memorandum, IT IS HEREBY ORDERED AS FOLLOWS:

1. The petition for writ of habeas corpus is dismissed.

2. Petitioner’s motion requesting the court to issue an order on the writ of habeas

corpus (Doc. 10) is denied as moot.

3. The Clerk of Court is directed to close this case.

s/Edwin M. Kosik 

United States District Judge

Case 4:05-cv-00291-EMK-LQ Document 12 Filed 08/29/05 Page 7 of 7