The opinion of the court was delivered by: Ricardo M. Urbina United States District Court Judge
DENYING THE PETITIONER'S MOTION FOR RELIEF UNDER 28 U.S.C. § 2255; DISMISSING WITHOUT PREJUDICE THE PETITIONER'S MOTION FOR RELIEF UNDER 28 U.S.C. § 2241; CONTINUING THE STAY ON THE EXECUTION OF THE PETITIONER'S PRISON SENTENCE
This matter comes before the court on the petitioner's motion to vacate, set aside, or correct her sentence. The petitioner expected to serve the custodial component of her sentence in a community corrections center ("CCC"). Pursuant to a new sentencing policy enunciated after this court sentenced her, however, the Bureau of Prisons ("BOP") in conjunction with the Department of Justice ("DOJ") abandoned the petitioner's CCC placement so that instead she serves her sentence in a federal prison camp located in Alderson, West Virginia. The petitioner appears to argue that the subsequent alteration of her CCC term violates due process and principles of equitable estoppel, basing these challenges on 28 U.S.C. §§ 2241 and 2255, and the reasoning advanced in Culter v. United States, 241 F. Supp. 2d 19 (D.D.C. 2003) (Huvelle, J.). The court dismisses the petitioner's section 2241 motion without prejudice because the petitioner has failed to name her custodian as a respondent in this action. Although there is a colorable argument that the alteration of the petitioner's CCC term is unfair, the court denies the petitioner's section 2255 motion for failing to sustain her contentions by a preponderance of the evidence and because the government may lawfully substitute prison for the petitioner's originally designated CCC term. Given the adverse effects of the shift in policy, however, the court allows the execution of the petitioner's prison sentence to remain stayed for a reasonable period of time so as to provide the petitioner with an opportunity to make the necessary preparations for her prison term. In addition, if the petitioner so desires, the court will recommend that the BOP designate the petitioner to a prison that is closer to her home and family.
For purposes of the instant motion, the record of this case begins on October 1, 2001 when the petitioner and her husband pled guilty to conspiracy to commit mail fraud pursuant to a plea agreement with the government. Gov't's Opp'n at 1-2; Plea Agreement at 2; Presentence Investigation Report ("PSR") at 3. The PSR placed the petitioner within Zone C of the Sentencing Table for the U.S. Sentencing Guidelines, resulting in a 10-16 month sentencing range for her custodial term. Gov't's Opp'n at 2; PSR at 13.
On November 5, 2002, the court sentenced both the petitioner and her husband to five months of imprisonment, with a recommendation to the BOP that they serve their period of confinement in a CCC. Tr. dated Nov. 5, 2002, at 11. In addition, the court sentenced each of them to five months of home detention upon the completion of their period of confinement, and ordered them to pay restitution to their defrauded victims. Id. at 11-12.
Because the petitioner and her husband have two young children, the court, upon the parties' joint recommendation, staggered their sentences so that one parent could remain with the children while the other served his or her term of confinement. Id. at 2-5, 10; see also Tr. dated Oct. 1, 2001, at 19-21. The petitioner's husband served his term without incident and was released on March 29, 2003 to begin the home-detention component of his sentence. Probation Mem. dated Apr. 22, 2003. The petitioner was to begin serving her term on April 1, 2003 at a local CCC. Order to Surrender dated Dec. 9, 2003.
Then suddenly, before the petitioner was to begin her term at the CCC, a governmental policy shift transformed criminal sentencing as it relates to prisoner placement. On December 13, 2002, the DOJ's Office of Legal Counsel ("OLC") issued a memorandum ("OLC Memorandum") interpreting the BOP's then-current policy of adhering to a sentencing judge's recommendation to place a non-violent offender who received a short prison sentence into a CCC. OLC Mem. at 1. The OLC Memorandum concluded that the courts have no authority to substitute a CCC term for imprisonment because, in essence, "imprisonment" means time spent in "prison" and not in a CCC. Id. at 3-4. The OLC Memorandum further concluded that the BOP does not have the authority to impose a CCC term for imprisonment, either on its own initiative or in deference to a sentencing judge's recommendation. Id. at 6-8. According to the OLC Memorandum, the BOP's statutory authority to select the " place of imprisonment" does not include the authority to designate a CCC as the place of imprisonment based on the same rationale that confinement in a CCC does not equate to imprisonment. Id. at 6 (emphasis in original).
On December 16, 2002, DOJ issued a memorandum ("DOJ Memorandum") accepting the OLC's recommendation and directing the BOP to comply with this interpretation of the law both prospectively (by no longer allowing CCC terms if the Sentencing Guidelines mandate "imprisonment") and retroactively (by transferring to prison all federal inmates currently housed in a CCC who have at least 150 days remaining on the imprisonment component of their sentence).*fn1 DOJ Mem. at 1. The petitioner falls into the category of offenders ensnared by the retroactive application of the new DOJ policy because: (1) her "imprisonment" term under the U.S. Sentencing Guidelines is 10-16 months; (2) she was to serve a portion of her "imprisonment" term in a CCC; and (3) she had at least 150 days remaining on the CCC-imprisonment portion of her sentence as of the December 16, 2002 date of the DOJ Memorandum. Id. Accordingly, the BOP notified the court that it would not follow the court's recommendation and had thereby designated the petitioner to a federal prison camp in Alderson, West Virginia. BOP Letter dated Jan. 17, 2003.
On January 31, 2003, the petitioner filed a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. §§ 2241 and 2255, arguing that principles of due process and equitable estoppel preclude the BOP from sending her to prison instead of the originally designated CCC.*fn2 Pet'r Mot. On March 26, 2003, the court stayed the execution of the petitioner's sentence, which the BOP had scheduled to commence on April 1, 2003, pending resolution of the petitioner's motion. Order dated Mar. 26, 2003. The court now addresses the petitioner's motion.
1. Legal Standard for Relief Under 28 U.S.C. § 2255
A petitioner may challenge the validity of his imposed sentence under 28 U.S.C. § 2255. Gomori v. Arnold, 533 F.2d 871, 875 (3rd Cir. 1976) (stating that a challenge to an imposed federal sentence must be made under section 2255, while a challenge to a sentence executed by federal prison and parole authorities is properly made under section 2241). Section 2255 authorizes the sentencing court to discharge or resentence a prisoner if the court concludes that it was without jurisdiction to impose the sentence, the sentence was in excess of the maximum authorized by law, or the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Addonizio, 442 U.S. 178, 185 (1979) (citing United States v. Hayman, 342 U.S. 205, 216-17 (1952)). A petitioner can collaterally attack his sentence under section 2255 where the sentencing judge made an "objectively ascertainable error." King v. Hoke, 825 F.2d 720, 724-25 (2d Cir. 1987) (citing Addonizio, 442 U.S. at 187). Nevertheless, the petitioner seeking to vacate his sentence shoulders the burden of sustaining his contentions by a preponderance of the evidence. United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973); Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978); Crail v. United States, 430 F.2d 459, 460 (10th Cir. 1970); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Relief under section 2255 is an extraordinary remedy. Addonizio, 442 U.S. at 184; United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992); United States v. Hodges, 156 F. Supp. 313, 314 (D.D.C. 1957) (Sirica, J.).
2. Legal Standard for Relief Under 28 U.S.C. § 2241
Prisoners may attack the manner of execution of a federal sentence pursuant to the federal habeas statute, 28 U.S.C. § 2241. Chatman-Bey v. Thornburgh, 864 F.2d 804, 809 (D.C. Cir. 1988); United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991) (citing United States v. Hutchings, 835 F.2d 185, 186 (8th Cir. 1987)). For purposes of the federal habeas statute, an individual released on his own recognizance pending execution of his sentence is nonetheless in custody and may bring a habeas petition. Hensley v. Mun. Ct., 411 U.S. 345, 351 (1973). A petitioner may pursue a habeas petition under section 2241 only after he has exhausted all of his administrative remedies. Chatman-Bey, 864 F.2d at 809 (noting that Congress has amended the habeas statute to require exhaustion of remedies). Finally, "the law in this circuit is clear that '[a] district court may not entertain a habeas corpus petition unless it has personal jurisdiction over the custodian of the prisoner.'" Chatman-Bey, 864 F.2d at 810 (citing Guerra v. Meese, 786 F.2d 414, 415 (D.C. Cir. 1986)).
3. Legal Standard for Due-Process Claims
a. The Due Process Clauses of the Fifth and Fourteenth Amendments
The Constitution's two Due Process Clauses are embodied in the Fifth and Fourteenth Amendments, and each "guarantee[s] a level of procedural protection before a person's life, liberty or property can be impinged upon by the government." Beo v. District of Columbia, 44 F.3d 1026, 1027 (D.C. Cir. 1995). The Fifth Amendment restrains the federal government from depriving any person of life, liberty, or property without due process of law. U.S. CONST. amend. V. The Fourteenth Amendment, on the other hand, restrains the states from depriving any person of life, liberty, or property without due process of law. U.S. CONST. amend. XIV, § 1. There is some blurring between the two clauses because both essentially apply the same analysis. Dusenbery v. United States, 534 U.S. 161, 167 (2002) (stating that"[t]he Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without 'due process of law'"); Beo, 44 F.3d at 1029 (discussing whether an agreement made in state court "can create a liberty interest under the Fourteenth or, in this case, the Fifth (because the [District of Columbia] is governed by federal statutes) Amendment"); Ernest H. Schopler, Annotation: Supreme Court's Views as to Concept of "Liberty" Under Due Process Clauses of Fifth and Fourteenth Amendments, 47 L. Ed. 2d 975, at *1a n.1 (1999) (clarifying that "the Supreme Court's interpretation of the term "liberty" is the same for the purposes of the Fifth and Fourteenth Amendments").
b. Substantive and Procedural Due Process
Under either the Fifth or Fourteenth Amendment, there are two types of due-process claims: substantive and procedural. Demore v. Hyung Joon Kim, 123 S. Ct. 1708, 1732 (2003) (stating that in relation to the Fifth and Fourteenth Amendments, "[t]he substantive demands of due process necessarily go hand in hand with the procedural"). Substantive due-process rights attach only when a fundamental right is involved, thus ensuring that the government does not unjustifiably infringe on that right.*fn3 Hutchins v. District of Columbia, 188 F.3d 531, 535 (D.C. Cir. 1999). The protection of fundamental rights derives from the substantive component of the Fifth Amendment's Due Process Clause, which protects those rights that are "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937). Because not all rights enumerated in the Bill of Rights are fundamental, restrictions on non-fundamental rights do not ...