PATRICK J. SCHILTZ, District Judge.
This matter is before the Court on the objection of petitioner Michael Toole to the November 26, 2012 Report and Recommendation ("R&R") of Magistrate Judge Tony N. Leung. Judge Leung recommends that Toole's petition for a writ of habeas corpus under 28 U.S.C. § 2241 be denied. The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Based on that review, the Court sustains Toole's objection and grants his § 2241 petition.
Toole, a former state-court judge, is serving a 30-month sentence in the Federal Prison Camp in Duluth, Minnesota. On September 27, 2012, Toole completed the first of three components of the Residential Drug Abuse Program ("RDAP").
Respondent disagrees. According to respondent, the only authority under which the BOP can designate an inmate to home confinement is found in 18 U.S.C. § 3624(c), which governs prerelease custody determinations during the last 12 months of an inmate's incarceration. Under Section 3624(c)(2), the BOP may place an inmate in home confinement "for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months" — which, in Toole's case, would mean that he is not eligible for home confinement until the end of December.
Because Toole contends that he has been eligible for home confinement since September 27, 2012, and because Toole is scheduled to be placed in home confinement on January 2, 2013, ECF No. 20 at 1, Toole seeks an expedited decision on his petition. Doing its best to work through this complicated issue in the short amount of time available to it, the Court holds that Toole is correct: Under § 3621(e)(2)(A), the BOP has had the authority to place Toole in home confinement since September 27, 2012, when Toole completed the first component of the RDAP.
Toole's petition essentially presents three questions: First, has Toole "successfully completed a program of residential substance abuse treatment" for purposes of § 3621(e)(2)(A)? Second, does § 3621(e)(2)(A) give the BOP the authority to place an inmate who has completed such a program in home confinement? And finally, if the BOP has the authority to place such an inmate in home confinement under § 3621(e)(2)(A), do the time limits in § 3624(c)(2) limit that authority?
The Court begins with the last question, which is the easiest to answer. Toole is correct that the time limits in § 3624(c)(2) do not limit whatever authority the BOP has under § 3621(e)(2)(A) to place an inmate in home confinement. The statute itself makes this clear. Section 3624(c)(4) expressly states that "[n]othing in this subsection shall be construed to limit or restrict the authority of the Director of the Bureau of Prisons under section 3621." Moreover, even before § 3624(c) was amended to include this language, the Eighth Circuit had rejected an argument that § 3624(c) limited the BOP's authority under a different subsection of § 3621. Elwood v. Jeter, 386 F.3d 842, 846-47 (8th Cir. 2004). In so holding, the Eighth Circuit implicitly rejected the argument (relied on by the dissent in Elwood, and by Judge Leung in the R&R) that the specific provisions of § 3624(c) should govern over the more general provisions of § 3621 and that the petitioner's position rendered § 3624(c) mere surplusage. See id. at 847-48 (Riley, J. dissenting). If the BOP has the authority under § 3621(e)(2)(A) to place Toole in home confinement, then both § 3624(c)(4) and Elwood make clear that nothing in § 3624(c) limits that authority.
As noted, determining whether § 3621(e)(2)(A) in fact gives the BOP the authority to place Toole in home confinement involves two questions: (1) Whether Toole has "successfully completed a program of residential substance abuse" within the meaning of that provision and, if so, (2) whether that provision gives the BOP the authority to place Toole in home confinement.
Respondent notes — in passing, and in the "Background" section of his brief — that "[s]uccessful completion of [the] RDAP requires an inmate to successfully complete all three components." See 28 C.F.R. § 550.53(a) ("[t]o successfully complete the RDAP, inmates must complete each of the following [three] components"). But nowhere in his brief does respondent explicitly argue that Toole has not completed a "program of residential substance abuse treatment" for purposes of § 3621(e)(2)(A). In particular, nowhere in his brief does respondent dispute Toole's careful and detailed argument that the first, "unit-based" component of the RDAP — a component that lasts a minimum of six months and that takes place in a treatment unit set apart from the general prison population, see 28 C.F.R. § 550.53(a)(1) — meets the definition of "residential substance abuse treatment" in § 3621(e)(5)(A). See 18 U.S.C. § 3621(e)(5)(A) (defining "residential substance abuse treatment" as "a course of individual and group activities and treatment, lasting at least 6 months, in residential treatment facilities set apart from the general prison population"). Notably, the R&R indicated that completing the unit-based component triggers § 3621(e)(2)(A), see R&R at 15 ("Section 3621(e)(2)(A) provides that a prisoner who has completed the unit component of the RDAP `shall remain in the custody of the [BOP] under such conditions as the [BOP] deems appropriate.'"), and respondent did not object in any way to this assertion.
Given the importance of this issue to Toole's petition, the Court considers respondent's failure to argue explicitly that Toole has not successfully completed a "program of residential substance abuse treatment" within the meaning of § 3621(e)(2)(A) — combined with respondent's failure to object to Judge Leung's indication that the unit-based component satisfies the requirements of § 3621(e)(2)(A) — to be a concession that Toole has "successfully completed a program of residential substance abuse treatment" for purposes of § 3621(e)(2)(A). The Court also notes that respondent explicitly conceded that the third component of the RDAP can be completed by the inmate while in home confinement. ECF No. 8 at 9. This is necessarily a concession that, if § 3621(e)(2)(A) gives the BOP authority to place an inmate in home confinement after the inmate has "successfully completed a program of residential substance abuse treatment," that authority can be exercised before the inmate completes the third component of the RDAP.
The BOP's general custodial authority over inmates is set forth in §§ 3621(a) and (b). Section 3621(a) commits a person who has been sentenced to a term of imprisonment to the "custody" of the BOP "until the expiration of the term imposed, or until earlier released for satisfactory behavior pursuant to the provisions of section 3624." Section 3621(b), in turn, authorizes the BOP to designate "any available penal or correctional facility" as the place of the inmate's imprisonment. There is authority for the proposition that a "penal or correctional facility" includes a community corrections center. See Goldings v. Winn, 383 F.3d 17, 25-28 (1st Cir. 2004).
It may be true that an inmate's home is not a "penal or correctional facility" within the meaning of § 3621(b). But Toole is not relying on § 3621(b). Instead, Toole is relying on § 3621(e)(2)(A), which does not require that the inmate be confined in a "penal or correctional facility." Section 3621(e)(2)(A) requires only that the BOP keep the inmate in "custody . . . under such conditions as the Bureau deems appropriate." The Court concludes that this provision authorizes home confinement, for two reasons:
First, both the Supreme Court and the Eighth Circuit have recognized that the question of whether an inmate is in "custody" turns not on the inmate's location — that is, on whether he is confined to a particular facility — but instead on whether the inmate is subject to the BOP's control. In Reno v. Koray, 515 U.S. 50, 62-63 (1995), the Supreme Court explained, albeit in a different context, that whether a defendant is in "official detention" for purposes of granting credit for prior custody depends on whether the defendant is in the BOP's custody. In so holding, the Court recognized that the place of confinement does not define whether an inmate is in the BOP's custody; rather, the relevant question is whether the inmate is subject to the BOP's control. Id. at 63 ("Unlike defendants `released' on bail, defendants who are `detained' or `sentenced' always remain subject to the control of the Bureau. This is an important distinction, as the identity of the custodian has both legal and practical significance. A defendant who is `released' is not in BOP's custody. . . ." (citation omitted)); see also Moreland v. United States, 968 F.2d 655, 659 n.8 (8th Cir. 1992) ("There exists a strong presumption that `custody' refers to the legal authority of the custodian. . . . The physical conditions to which federal inmates are subjected vary widely. . . . The only common link among all those settings is that the inmates are always subject to the authority of the Attorney General." (citation and quotations omitted)); Goldings, 383 F.3d at 25 (noting that Koray "recogniz[ed] that the relevant criteria for determining whether a court-imposed period of pre-trial detention in a CCC or other facility may be credited against a term of imprisonment is not the type or place of confinement but whether the defendant is in BOP custody"). These precedents suggest that an inmate who is confined to his home is still in the BOP's "custody" so long as the inmate remains subject to the control of the BOP.
Second, the BOP interprets a provision that is substantively identical to § 3621(e)(2)(A) — 18 U.S.C. § 4046(c) — to give it authority to place qualified inmates in home confinement notwithstanding the time limitations in § 3624(c). See BOP Program Statement 7320.01 (Sept. 6, 1995).
The Court therefore concludes that placing an inmate in home confinement is consistent with the requirement in § 3621(e)(2)(A) that an inmate who has successfully completed a program of residential substance abuse treatment "remain in the custody of the Bureau under such conditions as the Bureau deems appropriate." Having concluded (1) that Toole has "successfully completed a program of residential substance abuse treatment" within the meaning of § 3621(e)(2)(A); (2) that § 3621(e)(2)(A) gives the BOP the authority to place an inmate in Toole's position in home confinement; and (3) that § 3624(c)(2) does not limit the BOP's authority to place an inmate in Toole's position in home confinement, the Court will grant Toole's petition and order the BOP to consider whether to place Toole in immediate home confinement.
Based on all of the files, records, and proceedings herein, the Court SUSTAINS petitioner's objection [Docket No. 17] and DECLINES TO ADOPT the R&R [Docket No. 15]. IT IS HEREBY ORDERED THAT:
LET JUDGMENT BE ENTERED ACCORDINGLY.
