IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO RAMOS, : CIVIL NO. 4:10-CV- 681

:

Petitioner, : (Judge McClure)

v. :

: (Magistrate Judge Carlson)

RONNIE HOLT, et al., :

:

Respondents. :

REPORT AND RECOMMENDATION

I. Introduction

This Habeas Corpus Petition calls upon the Court to answer two questions

regarding the application of the Second Chance Act, a 2008 federal statute designed

to provide prison officials with greater discretion in assisting inmates in making the

transition back into society by permitting prison officials to place inmates in

Residential Re-entry Centers up to 12 months before they are released from custody. 

First, we must determine whether a federal inmate who wishes to bring a habeas

corpus petition based upon an alleged failure by prison staff to comply with the Act

must first exhaust administrative remedies within the prison system. For the reasons

set forth below, we conclude that exhaustion of these administrative remedies is a

prerequisite to federal habeas corpus relief in this setting. However, we also find that

1

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 1 of 31
Ramos effectively exhausted his administrative remedies by appealing this decision

denying him early placement in a Residential Re-entry Center through the Bureau of

Prisons grievance system, and that the Bureau of Prisons should not preclude

consideration of his claims on their merits simply by asserting that Ramos’ numerous

grievances were in some respects procedurally flawed.

Second, this Petition invites us to determine whether, and to what extent, the

Second Chance Act gives federal inmates a substantive right to early release to a

halfway house or other non-custodial setting asthey near the conclusion oftheir prison

terms. With respect to this question, we find, consistent with the vast majority of

courts, that the Act does not create a specifically enforceable right to release at any

particular time. Rather, it provides guidance to prison officials in the exercise of their

longstanding statutory discretion concerning inmate placements, guidance that

permits, but does not compel, earlier release to a residential setting for inmates.

Accordingly, what the law requires is for prison staff to give each inmate

individualized consideration for earlier residential release, but leaves that

individualized assessment largely in the discretion of corrections staff. Thus, we find

that the requirements of the Act are fully met where, as in this case, the evidence

shows that the Petitioner received a carefully tailored and individualized assessment

of his suitability for placement in a Residential Re-entry Center.

2

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 2 of 31
II. Statement of Facts and of the Case

A. Pedro Ramos

Pedro Ramosis a 38 year-old federal inmate, who wassentenced in 2004 to 100

monthsincarceration for conspiracy to distribute and possession with intent to deliver

at least 100 grams of heroin. (Doc. 5, Declaration of Serena Gonzalez Ex. 1 ¶ 3.)

Ramos has been incarcerated at the United States Penitentiary, Canaan since May 28,

2008, (Id. ¶ 4) and is currently scheduled for release on April 9, 2011. (Id.) Ramos

has prior drug, robbery and firearms convictions, and a prior history of drug use. (Id.,

Ex. 1, Attach. 6.) While incarcerated, it appears that Ramos has generally maintained

clear institutional conduct without any significant infractions. (Id., Ex. 1, Attach. 6.) 

B. The Second Chance Act and BOP Implementing Guidance

While Ramos was serving this federal sentence, in April of 2008, the Second

Chance Act of 2007, Pub. L. No. 110-199, went into effect. This act contains several

provisions which are designed to aid prisonersin their transition back into society. For

example, the Act authorizes the Bureau of Prisons to place certain inmates in

Residential Re-entry Centers (RRC) for as much as one year at the end of their prison

terms to aid them in their readjustment into society. See 18 U.S.C. § 3624(c)(1).

1

18 U.S.C. § 3624(c) provides as follows: 1

( c ) Prerelease custody.–

3

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 3 of 31
While Ramos has been in federal custody the Bureau of Prisons has adopted a series

of policies, practices and procedures which govern inmate placement and custody.

(Doc. 5, Ex.1, Attach. 1-6.) These policies, in part, speak to the issue of Residential

Re-entry Centers(RRC) placements of inmatesin the year prior to their release dates. 

These prison policies, which are attached to the response to this Petition,

specifically directed that as a result of the Second Chance Act: (1) RRC placements

were increased to a maximum of twelve months; (2) RRC placement determinations

(1) In general.--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. Such conditions may include a

community correctional facility. 

(2) Home confinement authority.--The authority under this subsection may be

used to place a prisoner in home confinement for the shorter of 10 percent of the

term of imprisonment of that prisoner or 6 months. 

(3) Assistance.--The United States Probation System shall, to the extent

practicable, offer assistance to a prisoner during prerelease custody under this

subsection. 

(4) No limitations.--Nothing in this subsection shall be construed to limit or

restrict the authority of the Director of the Bureau of Prisons under section 3621

18 U.S.C. § 3624 (c).

4

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 4 of 31
are to be made on an individualized basis using the criteria set forth at 18 U.S.C.

§3621(b); and, (3) sentencing court orders, recommendations or requests directing an

inmate’s placement in an RRC were not binding on the Bureau of Prisons.

The Bureau of Prisons policies governing implementation of the Act further

specifically instructed prison staff that all “inmates must now be reviewed for prerelease RRC placements 17-19 months before their projected release dates,” and the

memorandum sets forth the five factors under 18 U.S.C. § 3621(b) which must be

considered when determining RRC placement dates. (Id.) With respect to these

factors, the memorandum stated, “the Act requiresstaff to ensure that each pre-release

RRC placement decision is ‘of sufficient duration to provide the greatest likelihood

of successful reintegration into the community.’” (Id.)

Thus, staff were admonished that they “must approach every individual

inmate’s assessment with the understanding that he/she is now eligible for a maximum

of 12 months pre-release RRC placement.” (Id., emphasis in original.) The guidance

provided to prison staff further states as follows: “While the Act makes inmates

eligible for a maximum of 12 months pre-release RRC placements, Bureau experience

reflects inmates’ pre-release RRCneeds can usually be accommodated by a placement

of six months or less. Should staff determine an inmate’s pre-release RRC placement

may require greater than six months, the Warden must obtain the Regional Director’s

5

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 5 of 31
written concurrence before submitting the placement to the Community Corrections

Manager.” (Id.) Therefore, the Bureau of Prisons policy guidance implementing the

Act accomplishesthree goals: First, it mandates consideration of 12- month residential

re-entry center programs for all inmates. Second, while mandating thisindividualized

consideration, the policy notes that for many prisoners “inmates’ pre-release RRC

needs can usually be accommodated by a placement ofsix months or less.” Therefore,

the policy contains a third critical component requiring Regional Director approvalfor

RRC placements exceeding 6 months. 

C. Application of The Second Chance Act and Implementing

Guidance to Ramos’ RRC Placement

It is against thisstatutory regulatory and administrative background that prison

officials considered anRRC placement for PedroRamos. That consideration extended

through the spring, summer and fall of 2009. As part of this process, on April 28,

2009, a Program Review was held for Ramos. (Id. Ex. 1, Attach. 6.) This review was

reflected in an inmate skills development plan, which thoroughly and individually

documented Ramos’ criminal history, institutional conduct, social development,

training programs, social history and family background. (Id.) This Program review

then formed the basis for an RRC placement decision for Ramos.

6

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 6 of 31
On July 30, 2009, Ramos began inquiring into his RRC placement, submitting

an inmate request to staff inquiring about his RRC placement.( Id. ¶ 7; Inmate Request

to Staff, Attach. 3.) On August 2. 2009, Ramos was informed that he would be

considered for a RRC placement individual to his needs. (Id.) On November 4, 2009,

Ramos submitted another inmate request to staff inquiring about his RRC placement.

(Id. ¶ 8; Inmate Request to Staff, Attach. 4.) In response to this second request,

Ramos was informed that he would be recommended for a RRC placement of 150 to

180 days based on the length of his sentence, program participation, institutional

conduct, family and community ties, release residency, medical issues, and bed space

availability at the RRC. (Id.; see Institutional Referral for CCC Placement, Attach. 5

to Ex. 1).

On January 29, 2010, a recommendation for 150 to180 days RRC placement

was submitted for the Warden's approval. (Id. ¶ 9; Inmate Skills Development Plan,

Attach. 6). The recommended time frame was based on the five statutory factors

contained in 18 U.S.C. § 3621, and reflected that these five factors had been applied

specifically to the personal circumstances presented in Ramos’ case, since the

notification referred to Ramos’ personal history, past drug use, and current family

situation. (Id.; Institutional Referral for CCC Placement, Attach. 5 to Ex. 1). In

particular, this recommendation was based on the fact that Ramos has secured

7

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 7 of 31
residency with his wife, that Ramos was not destitute, that Ramos had a GED, and had

employment skills as well as fluency in two languages. (Id.; Inmate Skills

Development Plan, Attach. 6). The RRC placement decision also set individually

tailored goals for Ramos, stating that Ramos's primary objectives while housed at the

RRC should be the need to secure employment and to reconnect with his family.( Id.

¶ 10; Inmate Skills Development Plan, Attach. 6). Ramos currently has an RRC

placement date of October 12, 2010, at the Brooklyn House in Brooklyn, New York.

(Id.)

D. Bureau of Prisons Grievance Procedures and Ramos’

Administrative Efforts To Challenge This RRC Placement

Decision

With respect to inmate concerns regarding RRC placements and other matters,

the Bureau of Prisons has adopted a three-tiered administrative remedy procedure with

respect to inmate complaints which is set forth at 28 C.F.R. § 542.10, et seq. As part

of this grievance process, inmates should first present their complaints to staff, and

staff are obliged to attempt to informally resolve any issues before an inmate files a

formal request for Administrative Remedy. Id. at § 542.13(a). At the second stage of

this process, if an inmate is unable to informally resolve his complaint, the inmate may

file a formal written complaint to the Warden, on the appropriate form within twenty

(20) calendar days of the date on which the events which form the basis for the

8

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 8 of 31
complaint took place. Id. at § 542.14(a). If the inmate’s concern is not addressed to

the inmate’ssatisfaction by the Warden’sresponse, the inmate may then file an appeal

to the Regional Director within 20 calendar days. Id. at § 542.15(a). Finally, if the

inmate is dissatisfied with the Regional Director’s response, that decision may then

be appealed to the General Counsel (Central Office) within 30 calendar days from the

date of the Regional Director’s response. Id. The Regional Director then has 30

calendar days to respond and the General Counsel has 40 calendar days to address the

inmate’s concern. Id. at § 542.18.

As these regulations state: “The purpose of the Administrative Remedy

Program is to allow an inmate to seek formal review of an issue relating to any aspect

of his/her own imprisonment.” 28 C.F.R. § 542.10(a). Under this grievance process:

“If an inmate raises an issue in a request or appeal that cannot be resolved through the

Administrative Remedy Program, the Bureau will refer the inmate to the appropriate

statutorily-mandated procedures.” Id. at § 542.10(c). Furthermore, under these

procedures, no administrative remedy appeal is considered to have been fully

exhausted until decided by the Central Office. 28 C.F.R. § 542, et seq.

Notified of this proposed RRC placement by prison officials in November of

2009, Ramos attempted in a diligent, if procedurally flawed fashion, to challenge this

prison placement decision through the institutional grievance system. First, on

9

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 9 of 31
November 20, 2009, Ramos filed an administrative remedy at the institution level

requesting 12-monthsRRCplacement.(Id., Declaration of Susan Albert Ex.2 ¶ 5;BOP

SENTRY Report, Administrative Remedy Generalized Retrieval, Attach. 1 p. 2.) On

November 30, 2009, thisremedy wasrejected, not on a consideration of its merits, but

for procedural errors. (Id.) Undeterred Ramos, tried again on December 4, 2009, refiling his institution remedy request. (Id.) This request was denied and closed on

December 21, 2009.( Id.)

Ramosthen attempted to further exhaust hisinstitutionalremedies on December

28, 2009, when he appealed the Warden’s response and filed administrative remedy

at the Regional Office level. (Id. ¶ 6; BOP SENTRY Report, Administrative Remedy

Generalized Retrieval, Attach. 1 p. 3.) This effort was also unavailing, as this appeal

was denied and closed on January 26, 2010. (Id.) Ramos, however, continued to

persist in his efforts to pursue administrative relief. On February 24, 2010, Ramos

appealed the Regional Director’sresponse by filing an administrative remedy with the

Bureau of Prisons Central Office. (Id. ¶ 7.) On March 30, 2010, this administrative

remedy was rejected because Ramos failed to provide a copy of his informal request

with his appeal.(Id.) Ramos was advised he could resubmit his appeal in proper format

within 15 days, or by April 14, 2010.( Id.) By adopting this approach to Ramos’

10

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 10 of 31
appeal, which emphasized clerical requirements, the Bureau of Prisons Central Office

never addressed the merits of his complaints regarding his RRC placement.

E. Ramos’ Habeas Petition

On March 29, 2010, Ramosfiled this Petition for Writ of Habeas Corpus. (Doc.

1.) In his Petition Ramos challengesthe prison’s decision to deny him 12-month early

release consideration under the Second Chance Act, arguing that the actions of prison

personnel are arbitrary and inconsistent with the law. These issues have been fully

briefed by the parties (Docs. 1 and 5) and are now ripe for disposition. For the reasons

set forth below, it is recommended that the Court find that Ramos has effectively

exhausted his administrative remedies, but deny this Petition because the Petition fails

on its merits.

III. Discussion

A. The Exhaustion Doctrine Does Not Bar Consideration of 

This Habeas Petition.

At the outset in this case, Respondentsinvite usto treat this Petition in the same

way that the Bureau of Prisons Central Office treated Ramos’ administrative appeal;

that is, deny the Petition on procedural grounds without fully speaking to the merits

ofthisrequest. Specifically, the Respondentsinvite usto deny this Petition based upon

Ramos’ alleged failure to exhaust his administrative remedies. Respondents advance

11

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 11 of 31
this argument, even though they concede that Ramos followed the full administrative

appeal procedure prescribed by the Bureau of Prisons. Moreover, Respondents urge

us to take this position even though these administrative grievances were ultimately

rebuffed because of perceived procedural flaws.

In the unique circumstances presented here, it is recommended that the Court

should decline this invitation. Although 28 U.S.C. § 2241 contains no express

exhaustion requirement, “[o]rdinarily, federal prisoners are required to exhaust their

administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241.” Gambino v. Morris, 134 F.3d 156, 171 (3d Cir.1998); see also, e.g.,

Callwood v. Enos, 230 F.3d 627, 634 (3d Cir.2000); Bradshaw v. Carlson, 682 F.2d

1050, 1052 (3d Cir.1981). These exhaustion rules serve an important and salutary

purpose. The United States Court of Appeals for the Third Circuit requires

administrative exhaustion of a claim raised under § 2241 for three reasons: “(1)

allowing the appropriate agency to develop a factual record and apply its expertise

facilitates judicial review; (2) permitting agencies to grant the relief requested

conserves judicial resources; and, (3) providing agencies the opportunity to correct

their own errors fosters administrative autonomy.” Moscato v. Federal Bureau of

Prisons, 98 F.3d 757, 761-62 (3d Cir.1996); see also Gambino, 134 F.3d at 171; Lyons

v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir.1988).

12

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 12 of 31
In this case, it is undisputed that Ramos pursued administrative appeals

throughout the Bureau of Prisons system, seeking re-consideration of this placement

decision from the warden, the regional director, and the Bureau of Prisons Central

Office. Those grievances have been uniformly denied, with the Central Office electing

to rest its decision to deny relief essentially upon his alleged procedural errors. 

With respect to habeas petitions which challenge the denial of RRC placements

under the Second Chance Act: “Courts in the Middle District of Pennsylvania have

consistently held that ‘exhaustion of administrative remedies is not rendered futile

simply because a prisoner anticipates he will be unsuccessful in his administrative

appeals before the twelve-month pre-release mark, which is simply a statutory

maximum and not a mandate.’ ” Ross v. Martinez, No. 09-1770, 2009 WL 4573686,

3 (M.D.Pa. Dec. 1, 2009)(citations omitted). Rigorously applying these exhaustion

requirements, this Court has in the past consistently rejected habeas petitions brought

under the Second Chance Act where inmates have failed to fully exhaust their

administrative remedies. See, e.g., Lacy-Thompson v. Martinez, No. 09-1320, 2009

WL 4823875 (M.D. Pa. Dec. 14, 2009); Ferris v. Holt, No. 09-1465, 2009 WL

3260557 (M.D. Pa. Oct. 8, 2009); Drummond v. Martinez, No. 09-1258, 2009 WL

3241851 (M.D. Pa. Oct. 5, 2009).

13

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 13 of 31
While we agree that administrative exhaustion is a prerequisite to seeking

habeas relief challenging some aspect of prison discretion in a Residential Re-entry

Center placement under the SecondChance Act, these cases which have denied habeas

relief to a prisoner on exhaustion grounds have consistently involved instances in

which the inmate failed to complete the three-step grievance process prescribed by the

Bureau of Prison. Id. In contrast, in this case Ramos completed that process, appealing

both to the regional director and to the Bureau of Prisons Central Office. The Central

Office, however, elected to reject his appeal on procedural grounds . Thus, the Bureau

of Prisons Central Office rejected these grievances without reaching the merits of

Ramos’ concerns. 

In such a situation, where the inmate has acted in good faith and has completed

all steps of the grievance process, we believe that the agency’s decision to deny his

appeal on procedural grounds should not serve as a bar to the inmate’s access to

federal court. Given Ramos’ efforts to present this issue, the Bureau of Prison could

easily have responded to the merits of his request, while also addressing these

procedural aspects of his appeal. Had the Bureau of Prisons accepted any of these

invitations to consider the merits of his claims, the goals of exhaustion would have

been fully met here. In such an instance, the agency’s consideration of this appeal on

its merits would have: “(1) allow[ed] the . . . agency to develop a factual record and

14

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 14 of 31
apply its expertise facilitat[ing] judicial review; (2) permitt[ed] [the] agenc[y]to grant

the relief requested [thus] conserv[ing] judicial resources; and, (3) provid[ed] [the]

agenc[y] the opportunity to correct their own errors [thereby] foster[ing]

administrative autonomy.” Moscato v. Federal Bureau of Prisons, 98 F.3d at 761-62.

Instead, by choosing to deny the request based upon purported procedural failuresthe

Bureau of Prisons forfeited the opportunity to use this process to secure all of the

benefits of administrative exhaustion. Having decided to forego the benefits of

exhaustion in terms of allowing the agency to consider the merits of an inmate request,

it would be anomalous to allow the agency to now assert the exhaustion doctrine as

a bar to merits consideration of this Petition in federal court when it is clear that

Ramos attempted to fully exhaustion his remedies. 

Moreover, adopting the exhaustion requirement in a fashion which ties access

to federal court to an inmate’s failure to meet agency procedural benchmarks in an

administrative appeal conflicts with the standards which govern the exhaustion

doctrine generally in habeas petitions. Indeed, in many instances federal law permits

the Court in its discretion to reach the merits of claims that may arguably be

procedurally flawed. For example, 28 U.S.C. § 2254(b)(2), expressly authorizes the

Court in some instances to address the merits of a procedurally flawed claim stating:

15

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 15 of 31
“An application for writ of habeas corpus may be denied on the merits,

notwithstanding the [alleged] failure of the applicant to exhaust [other] remedies....” 

Federal habeas corpus case law also recognizes that, while this exhaustion rule

compels petitioners to permit another court or agency a fair “opportunity to apply

controlling legal principles to the facts bearing upon [the petitioner’s] constitutional

claim,” Picard v. Connor, 404 U.S. 270, 276 (1971), this requirement should be

applied in a commonsense fashion. Thus, as a generalrule, the exhaustion requirement

is met when a petitioner submits the gist of his federal complaint to a court or agency

for consideration, without the necessity that the petitioner engage in some “talismanic”

recitation of specific constitutional claims. Evans, 959 F.2d at 1230-33. Similarly, a

petitioner meets his obligations by fairly presenting a claim, even if the court or

agency declines to specifically address that claim. See Dye v. Hofbauer, 546 U.S.

1(2005) (per curiam); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004).

Adopting this practical and commonsense view of the exhaustion requirement

we find that Ramos effectively exhausted his remedies by pursuing appeals to the

warden, the regional director and the Central Office. We decline the invitation of the

Bureau of Prisons to condition Ramos’ access to the courts upon the agency’s

assessment of the procedural adequacy of these appeals to the Central Office. Instead,

we find that Ramos exhausted his administrative remedies by completing all three

16

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 16 of 31
steps of the Bureau of Prisons administrative appeal process even if the merits of his

claim were not considered by that agency in its final agency decision. See Wires v.

Bledsoe, No. 09-2247, 2010 427769, *3, n.1 (M.D.Pa. Feb. 3, 2010); Strong v.

Schultz, 599 F.Supp.2d 556, 561 (D.N.J. 2009).

B. This Petition Fails on Its Merits

Although we find that the exhaustion doctrine should not, in this case, prevent

consideration of the merits of Ramos’ Petition for Writ of Habeas Corpus, we

conclude that Ramos has not carried his burden of establishing that this discretionary

decision by the Bureau of Prisons violated any rights guaranteed to him by the

Constitution or laws of the United States. Therefore, we recommend that this Petition

be denied on its merits.

At the outset, it is clear that this Petition does not raise any concerns of a

Constitutional dimension. Nor can Ramos rely upon Constitutional concerns to

challenge this RRC placement decision since it is well established that the United

States Constitution does not confer any right upon an inmate to any particular custody

or security classification. Moody v. Daggett, 429 U.S. 78, 88 (1976); Montanye v.

Haymes, 427 U.S. 236, 242 (1976). Thus, inmates do not have a liberty interest in

retaining or receiving any particular security or custody status “[a]s long as the

17

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 17 of 31
[challenged] conditions or degree of confinement is within the sentence imposed ...

and is not otherwise violative of the Constitution.” Id. 

Similarly, it has long been recognized that the mere fact of a prison transfer,

standing alone, does not constitute cruel and unusual punishment in violation of the

Eighth Amendment to the Constitution. See, e.g., Hassain v. Johnson, 790 F.2d 1420

(9th Cir. 1986); Serrano v. Torres, 764 F.2d 47 (1st Cir. 1985). Thus, even inmate

transfers to facilities far from their homes do not rise to the level of cruel and unusual

punishment. See, e.g., Gov’t of Virgin Island v. Gereau, 592 F.2d 192 (3d Cir.

1979)(transferfromVirgin Islands to mainland); Rodriguez-Sandoval v.UnitedStates,

409 F.2d 529 (1st Cir. 1969)(transfer from Puerto Rico to Atlanta). In short, wellsettled law establishes that prisoners have no inherent constitutionalright to placement

in any particular prison, such as a Residential Re-entry Center, to any security

classification, or to any particular housing assignment. See Olim v. Wakinekona, 461

U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215 225 (1976); Montanye, 427

U.S. at 242; Bulger v. U.S. Bureau of Prisons, 65 F.3d 48 (5th Cir. 1995); Marchesani

v. McCune, 531 F.2d 459 (10th Cir.1976).

Rather, Ramos’ sole avenue for substantive relief lies through the Second

Chance Act itself. With respect to habeas claims premised on the Act, as we have

noted, in April of 2008, the Second Chance Act of 2007, Pub. L. No. 110-199, went

18

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 18 of 31
into effect. This Act contains several provisions which are designed to aid prisoners

in their transition back into society. For example, the Act authorizes the Bureau of

Prisons to place certain inmates in Residential Re-entry Centers for up to one year at

the end of their prison terms to aid their readjustment into society. See 18 U.S.C. §

3624(c)(1).

2

18 U.S.C. § 3624(c) provides as follows: 2

( c ) Prerelease custody.–

(1) In general.--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. Such conditions may include a

community correctional facility. 

(2) Home confinement authority.--The authority under this subsection may be

used to place a prisoner in home confinement for the shorter of 10 percent of the

term of imprisonment of that prisoner or 6 months. 

(3) Assistance.--The United States Probation System shall, to the extent

practicable, offer assistance to a prisoner during prerelease custody under this

subsection. 

(4) No limitations.--Nothing in this subsection shall be construed to limit or

restrict the authority of the Director of the Bureau of Prisons under section 3621

18 U.S.C. § 3624(c).

19

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 19 of 31
While the Act promotes policies assisting inmates in reintegration into society,

nothing in the Act is mandatory, and the Act does not compel the Bureau of Prisons

to provide particular inmates with a specific community confinement or home

detention placement. Quite the contrary, the statutory text makes it clear that prison

officials retain their broad discretion in placing, housing, transferring and classifying

inmates. Thus, 18 U.S.C. § 3624(c)(4) clearly states that the Act in no way restricts

the broad discretion conferred upon the Bureau of Prisons under 18 U.S.C. § 3621 to

make decisions on how best to house inmates, providing that: “Nothing in this

subsection shall be construed to limit or restrict the authority of the Director of the

Bureau of Prisons under section 3621". Section 3621, in turn, reaffirmsthe discretion

of prison officials in this field to make appropriate prison placement decisions based

upon five statutory factors set forth in 18 U.S.C. § 3621(b). Similarly, while the

3

18 U.S.C. § 3621(b) provides: 3

(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--

20

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 20 of 31
Second Chance Act amended 42 U.S.C. § 17541 to encourage the Bureau of Prisons

to examine early release and social re-integration for certain offenders, the Act

expressly reaffirms that decisions relating to which offenders may qualify for the

programinvolve assessmentsthatrest in the sound discretion ofthe Bureau of Prisons.

See 42 U.S.C. §§ 17541(a)(2) and (g)(5).

Indeed, as it relates to inmate community confinement decisions, the Second

Chance Act speaks directly to the discretion retained by the Bureau of Prisons in 18

U.S.C. § 3624(c)(1) which provides as follows:

( c ) Prerelease custody.–

(1) In general.--The Director of the Bureau of Prisonsshall, to the extent

practicable, ensure that a prisoner serving a termof 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. Such conditions may include a community correctional

facility. 

(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 . . . Any order,

recommendation, or request by a sentencing court that a convicted

person serve a term of imprisonment in a community corrections

facility shall have no binding effect on the authority of the Bureau

under this section to determine or change the place of imprisonment

of that person.

21

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 21 of 31
18 U.S.C. § 3624(c)(1)(emphasis added).

The use of the word “may” in § 3624 (c), has led many courts to hold that the

Act creates no absolute, enforceable legal right to a 12- month RRC placement for any

prisoner. See, e.g., O’Hara v. Rios, No. 08-5160, 2009 U.S. Dist. LEXIS 90243 (D.

Minn. Sept. 28, 2009); McGee v. Thomas, No. 09-455, 2009 U.S. Dist. LEXIS 62617

(D. Ore. July 22, 2009). Rather, what is required by the Act is a showing that the

Bureau of Prisons engaged in an individualized determination of each inmate’s RRC

placement, using the statutory factors set forth in the law. Smith v. Sanders, No. 09-

3083, 2009 U.S. Dist. LEXIS 82265 (C.D. Cal. July 31, 2009).

Moreover, in considering whether the Bureau of Prisons has properly exercised

its broad discretion in this field, over the past year courts have frequently examined

the Bureau of Prisons policy statements implementing the Act. These policies

statements: (1) note that many inmates can be successfully re-integrated into society

in 180 days or less: and, (2) require regional director approval for 12-month RCC

placements. Much recent litigation in this field has focused on the issue of whether

this policy guidance violates the Second Chance Act by creating unwarranted

institutional and bureaucratic obstaclesto such 12-month placements. As to thisissue,

courts are divided. 

22

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 22 of 31
The majority view, reflected in numerous trial court opinions, and in the only

appellate court decision to have considered this issue, holds that the Bureau of

Prisons’ requirement of regional director approval, and the agency’s stated view that

many inmates can have their needs meet through 180-day RRC placements, do not

violate the Act . This view has twice been adopted by courtsin this district. McDonald 4

v. Obama, No. 10-379, 2010 WL 1526447 (M.D. Pa. April 15, 2010), adopting,

McDonald v. Obama, No. 10-379, 2010 WL 1526443 (M.D. Pa. March 15, 2010); 

Wires v. Bledsoe, No. 09-2247, 2010 WL 427769 (M.D.Pa. Feb. 3, 2010)(citing

Torres v. Martinez, No. 09-CV-1070 (M.D.Pa. Aug.12, 2009))(Munley, J.)

Recognizing the broad discretion expressly conferred to the Bureau of Prisons

by statute, these cases consistently hold that the requirement of regional director

See,e.g., Miller v. Whitehead, 527 F.3d 752,755-58 (8th Cir. 2008); Wires 4

v. Bledsoe, No. 09-2247, 2010 WL 427769 (M.D.Pa. Feb. 3, 2010)(citing Torres

v. Martinez, No. 09-CV-1070 (M.D.Pa. Aug.12, 2009)); Fleischi v. Outlaw, No.

09-79, 2009 U.S.Dist. LEXIS 99306 (E.D. Ark. Oct. 26, 2009); O’Hara v. Rios,

No. 08-5160, 2009 U.S. Dist. LEXIS 90243 (D. Minn. Sept. 28, 2009); Holland v.

Bureau of Prisons, No. 08-3960, 2009 WL 2872835 (D.S.C. Sept. 2, 2009); Smith

v. Sanders, No. 09-3083, 2009 U.S. Dist. LEXIS 82265 (C.D. Cal. July 31, 2009);

Yanucci v. Stansberry, No. 08-561, 2009 WL 2421546 (E.D.Va. July 28, 2009); 

McGee v. Thomas, No. 09-455, 2009 U.S. Dist. LEXIS 62617 (D. Ore. July 22,

2009); Sessel v. Outlaw, No. 08-212, 2009 WL 1850331 (E.D. Ark. June 25,

2009); Stanko v. Rios, No. 08-4991, 2009 WL 1303969 (D. Minn. May 8, 2009);

Somerville v. DeWalt, No. 09-68, 2009 U.S.Dist. LEXIS 37454 (E.D. Ky. May 1,

2009); Snyder v. Angelini, No. 07-3073, 2008 U.S. Dist. LEXIS 86460 (E.D.N.Y.

Oct. 27, 2008). 

23

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 23 of 31
approval for 12-month RRC placements, and the various agency statements expressing

an institutional view that RRC placements of 6 months or less are generally adequate

for most inmates, do not violate the Act. Rather these policies simply reflect the

Bureau of Prisons’ exercise of its discretion in implementing the Act, an Act which

provides that prison officials simply “may” use community corrections facilities for

up to 12 months to aid inmatesin their return to society. Id. Therefore, these casesfind

nothing fundamentally offensive about these agency policy preferences, provided that

each inmate receives the individualized consideration of this RRC placement called

for by the Act. Id. 

Two cases take a different view. Krueger v. Martinez, 665 F.Supp.2d. 477

(M.D. Pa. 2009); Strong v. Schultz, 599 F.Supp.2d 556 (D.N.J. 2009). In Strong and

Krueger, the district courts found that: (1) the agency requirement of prior regional

director approval for 12-month RCC placements; coupled with (2) the agency’s stated

position that “inmates’ pre-release RRC needs can usually be accommodated by a

placement of six months or less”, so restrict inmate access to the 12-month RRC

programs permitted under the Second Chance Act that they constitute an abuse of

discretion by the Bureau of Prisons. Id. In Krueger, the district court also went on to

note another shortcoming in the agency’s implementation of the Act, observing that

in making its particular RRC placement the agency appeared to have failed to

24

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 24 of 31
consider a statutory requirement under 42 U.S.C. § 17541 that the Bureau of Prisons

use earlyRRCplacementsto create incentives for inmatesto participate in educational

programs. Krueger, 665 F.Supp.2d. at 484-86 . Citing these concerns, these two courts

granted habeas petitions, but only permitted a very limited form of relief, directing the

agency simply to reexamine its decision without taking into consideration the general

agency policy guidance which the courts found to violate the goals of the Act.

While these two cases express this view with greatforce, it isrecommended that

the Court adopt the majority view in terms of its framework for analysis of this habeas

petition. At the outset, imposing this heightened scrutiny to these prison placement

decisions can create a legal and analytical dilemma for reviewing courts in terms of

defining the proper scope of judicial review in an area committed to agency discretion.

This dilemma is aptly described by the one of the leading decisions in thisfield, Miller

v. Whitehead, supra, which succinctly identified the dangers which may arise if

agency determinationsregarding how to implement statutes concerning inmate prison

assignments which provide for the exercise of substantial discretion are not given due

deference. As the Court noted:

Taken to its logical conclusion, the argument advanced by the inmates

would require the BOP to consider daily requests for transfer to an RRC

from every inmate in a facility, and to deny such requests only after an

individualized consideration of each inmate's request and the five

statutory factors. We agree . . . that “Congress surely did not intend such

25

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 25 of 31
a result.” See Muniz v. Sabol, 517 F.3d 29, 36 n. 14 (1st Cir.2008).

“Even if a statutory scheme requiresindividualized determinations, ... the

decisionmaker has authority to rely on rulemaking to resolve certain

issues of general applicability unlessCongress clearly expresses an intent

to withhold that authority.” Lopez v. Davis, 531 U.S. 230, 243-44(2001)

(internal quotation omitted).

Miller, 527 F.3d at 757.

These dangers may not have been fully addressed by those two cases which have

granted habeas relief, since neither court discussed Miller, the leading appellate court

decision in this field, in reaching their conclusions.

Furthermore, we agree with the majority of courts which have considered this

statutory text, that the Second Chance Act does not appear to have the type of legal

force that Strong and Krueger suggest. While the Act authorizes 12-month RRC

placements by the Bureau of Prisons, it does not mandate them. Instead, the Act

expressly and repeatedly emphasizes that the Bureau of Prisons retains full discretion

in identifying when and how inmates are placed at RRCs. See, e.g., 18 U.S.C. §§

3621(b), 2624(c)(1) and (4); 42 U.S.C. §§ 17541(a)(2) and (g)(5).

Moreover, while we recognize the force of institutional inertia, and the fact that

these policy prescriptions will restrict the number of inmates who receive this 12-

month program, any exercise of discretion yields this result for some inmates, yet

Congress expressly authorized the exercise of this discretion by the Bureau of Prisons

26

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 26 of 31
when implementing this program. See, e.g., 18 U.S.C. §§ 3621(b), 2624(c)(1) and (4);

42 U.S.C. §§ 17541(a)(2) and (g)(5). Furthermore, the requirement of regional

director approval for 12-month placements in RRCs and limiting extended access to

these programs isrationally related to one of the statutory factors which govern prison

placements; namely, the allocation of limited available prison resources. See 18

U.S.C. 3621(b). Without centralized coordination of these placements, individual

institutions applying guidance in different ways could quickly exhaust available

inmate housing. Thus, the various competing demandsfor these placementsis a factor

which strongly cautions in favor of some centralized assessment of extended RCC

placement requests.

Finally, while we agree with the Miller court that individualized assessments

of specific RRC placement decisions is not a task well-suited for the courts, we also

note that the broader question of the Bureau of Prisons’ overall implementation of its

discretion under the Second Chance Act is also an issue which is more appropriately

considered in some other forum. In that regard, the Act expressly calls for legislative

oversight of this process, mandating that the Bureau of Prisons prepare and submit to

Congress annual reports documenting the way in which it exercises the discretion

conferred upon it by Congress in this field. See 42 U.S.C. § 17541(d). While this

Congressional oversight is not a reason to forego our responsibilities here, it is a factor

27

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 27 of 31
which suggests that in fulfilling our responsibility we should focus on ensuring that

each inmate receives the individualized consideration called for by the law, and we

may leave the broader public policy assessment of how well prison policies meet

Congressional expectations to another forum.

In short, adopting a view which calls for a particularized analysis and

assessment of the wisdom Bureau of Prisons’ policy guidance in the area of RRC

placements could draw the courts into an individualized assessment of each inmate’s

case against the five statutory factors, a result we do not believe that Congress

intended. Miller, 527 F.3d at 757. Moreover, many of these policies, and particularly

the policy requiring centralized review of extended RRC placements, are rationally

related to institutional needs that are expressly delegated to the Bureau of Prisons.

Further, to the extent that there is a need to engage in an overall assessment of how

these policies are being implemented, the Second Chance Act clearly contemplates

that this review will be done primarily through Congressional oversight. Therefore,

all of these statutory considerations weigh in favor of the majority view expressed by

the federal courts, which calls upon the courts to limit judicial review in this field to

making an independent assessment that the Bureau of Prisons engaged in an

individualized determination of each inmate’s placement, using the statutory factors

28

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 28 of 31
set forth in the law. Smith v. Sanders, No. 09-3083, 2009 U.S. Dist. LEXIS 82265

(C.D. Cal. July 31, 2009).

Adopting this standard of review, we believe that the record of these

proceedings shows that Ramos’ request received individualized consideration at the

prison. For example, on January 29, 2010, a recommendation for 150 to180 days RRC

placement was submitted for the Warden's approval. (Id. ¶ 9; Inmate Skills

Development Plan, Attach. 6). The recommended time frame was based on the five

statutory factors contained in 18 U.S.C. § 3621, and reflected that these five factors

had been applied specifically to the personal circumstances presented in Ramos’ case,

since the notification referred to Ramos’ personal history, past drug use, and current

family situation. (Id.; Institutional Referral for CCC Placement, Attach. 5 to Ex. 1).

In particular, this recommendation was based on the fact that Ramos has secured

residency with his wife, that Ramos was not destitute, that Ramos had a GED, and had

employment skills as well as fluency in two languages. (Id.; Inmate Skills

Development Plan, Attach. 6). The RRC placement decision also set individually

tailored goals for Ramos, stating that Ramos' primary objectives while housed at the

RRC should be the need to secure employment and to reconnect with his family.( Id.

¶ 10; Inmate Skills Development Plan, Attach. 6).

29

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 29 of 31
But even if the Court embraced the more heightened standard ofreview adopted

in Krueger v. Martinez, 665 F.Supp.2d. 477 (M.D. Pa. 2009), this particular placement

decision would still appear to meet the requirements set by law. At the outset, it is

evident that this decision involved a specifically tailored, and individualized

assessment of the needs of Ramos, an assessment that was thoroughly documented by

prison officials at the institution. Therefore, regardless of the standard of review

employed here, an assessment of the RRC placement decision in this case leads to the

firm conviction that this decision represented an individualized assessment of the

needs of this prisoner, which is all that the law requires, and all that an inmate can

demand. 

While we reach this result in this particular case, we note that prison officials

have agreed that they : “must approach every individual inmate’s assessment with the

understanding that he/she is now eligible for a maximum of 12 months pre-release

RRC placement,” (Doc. 5, Ex. 1, attach. 1, emphasis in original). We urge prison

officials to remain mindful of the standards which they have set for themselves, and

which Congress has set for them, as they ensure that all inmates understand that they

are receiving an individualized assessment of their needs. 

30

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 30 of 31
 IV. Recommendation

Accordingly, for the foregoing reasons, upon consideration of this Petition for

Writ of Habeas Corpus filed pursuant to 28, United States Code, § 2241, IT IS

RECOMMENDED that the Petition be DENIED, and that a certificate of appealability

should not issue. The Petitioner isfurther placed on notice that pursuant to Local Rule

72.3:

Any party may object to a magistrate judge's proposed findings, 

recommendations or report addressing a motion or matter described in 28

U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition

of a prisoner case or a habeas corpus petition within fourteen (14) days

after being served with a copy thereof. Such party shall file with the clerk

of court, and serve on the magistrate judge and all parties, written

objections which shall specifically identify the portions of the proposed

findings, recommendations or report to which objection is made and the

basis for such objections. The briefing requirements set forth in Local

Rule 72.2 shall apply. A judge shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made and may accept, reject, or

modify, in whole orin part, the findings orrecommendations made by the

magistrate judge. The judge, however, need conduct a new hearing only

in his or her discretion or where required by law, and may consider the

record developed before the magistrate judge, making his or her own

determination on the basis of that record. The judge may also receive

further evidence, recall witnesses or recommit the matter to the

magistrate judge with instructions.

S/Martin C. Carlson 

Martin C. Carlson

 United States Magistrate Judge

Dated: May 5, 2010

31

Case 4:10-cv-00681-JFM Document 6 Filed 05/05/10 Page 31 of 31