Leavitt v. FCI Berlin

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Joshua Leavitt
v. 	Case No. 24-cv-134-JL-AJ
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Petitioner, Joshua Leavitt, a person in the custody of the
Federal Bureau of Prisons (“BOP”), filed two motions in his criminal
case which the court has docketed outside of that case as two
separate petitions for writs of habeas corpus under 28 U.S.C.
§ 2241. 	The motion docketed as the petition here (Doc. No. 1) seeks
an order directing the respondent to release Leavitt to home
confinement immediately, bypassing any halfway house placement.1
This § 2241 petition is presently before this court for preliminary
review. 	See 28 U.S.C. § 2243; Rule 4 of the Rules Governing Section
2254 Cases (“§ 2254 Rules”); LR 4.3(d)(4)(A); see also § 2254 Rule
1(b) (§ 2254 Rules may apply to § 2241 petitions).
1 The other motion, docketed as a § 2241 petition in Leavitt v.
Warden, No. 24-cv-133-JL-AJ (D.N.H.), raises a separate claim
challenging the BOP’s calculation of Leavitt’s earned time credits
under the First Step Act (“FSA”). 	The FSA earned time credit claims
in that case are not raised in this petition, and this court
expresses no opinion here regarding whether or not the BOP has
violated the FSA by failing to apply all of the earned time credits
that Leavitt claims to have earned. 	An addendum to the petition in
that case, docketed on June 24, 2024, states that the petitioner is
presently in a halfway house placement. 	See Addendum to Pet., id.
(ECF No. 6).
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Standard
Pursuant to § 2254 Rule 4, a judge is required to examine a
petition for habeas relief and, if “it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the
petition.” 	Id. 	“Federal courts are authorized to dismiss summarily
any habeas petition that appears legally insufficient on its face.”
McFarland v. Scott, 512 U.S. 849, 856 (1994). 	The court construes
this petitioner’s pleadings liberally, considering his pro se
status. 	See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
Background
Leavitt pleaded guilty in 2022 to two counts of bank fraud and
wire fraud. 	See Minute Entry, United States v. Leavitt, No. 22-cr-
74-PB-02 (D.N.H. Sept. 27, 2022). 	Judge Barbadoro sentenced Leavitt
to a 28-month term of imprisonment, followed by two years of
supervised release, in that criminal case. 	See Jt., id. (D.N.H.
Apr. 13, 2023) (ECF No. 68).
The BOP Online Inmate Locator projects Leavitt’s release from
his term of imprisonment as January 21, 2025. 	Leavitt’s Federal
Prison Camp (“FPC”) Berlin Case Manager, has stated that the BOP
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projects he could be released from BOP custody in November 2024,
with the application of FSA sentence credits.2
In 2023 or early 2024, Leavitt’s FPC Unit Team told him that he
was scheduled to serve the last six months of his term of
imprisonment in a prerelease custody setting, either in a halfway
house or in home confinement, subject to the administration of a New
York-based BOP Residential Reentry Management Center (“RRM”). 	In
particular, Leavitt was told he would be transferred from FPC Berlin
to Hampshire House, a halfway house in Manchester, New Hampshire, on
May 14, 2024. 	Leavitt further asserts that his FPC Berlin Case
Manager and the Hampshire House case manager expected he might spend
only a few days in that halfway house setting before the RRM would
assign him to home confinement for the duration of his term of
imprisonment.
In late March 2024, the BOP pushed back Leavitt’s halfway house
transfer date. 	Leavitt’s petition asserts that the BOP’s reasons
for that change include the “glut” of demand for community-based
placements and an administrative decision to prioritize other
prisoners for longer or earlier prerelease custody placements. 	A
supplemental pleading filed by Leavitt in June 2024 in a related
2 BOP projects Leavitt’s “conditional FSA release date” to be
November 7, 2024, a date Leavitt has disputed in a separately
docketed § 2241 petition, see Leavitt v. Warden, No. 24-cv-133-JL-AJ
(D.N.H.). 	In that case, Leavitt claims that, if the BOP applied all
of his FSA earned time credits, the BOP should release him from his
term of imprisonment on or about October 7, 2024, to begin his term
of supervised release.
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case, see Leavitt v. Warden, No. 24-cv-133-JL-AJ (D.N.H.), states
that the petitioner was transferred to a halfway house placement in
June 2024. 	See Addendum to Pet. (ECF No. 6).
Leavitt petitioned the FPC Berlin Warden for release to home
confinement, and the Warden declined that request, explaining that a
Warden cannot release prisoners to home confinement at this time in
the manner Leavitt requested. 	Leavitt’s § 2241 petition asks the
court to direct the BOP to place him in home confinement
immediately, so that he can begin the process of community
reintegration and family reunification as soon as possible.
Discussion
I. 	Standard
Habeas corpus relief pursuant to 28 U.S.C. § 2241 is
appropriate if a person is “in custody in violation of the
Constitution or laws or treaties of the United States.” 	28 U.S.C.
§ 2241(c)(3). 	In exercising its habeas jurisdiction, this court may
consider claims asserting that the BOP has unlawfully delayed a
person’s transfer to a community-based custodial setting. 	See Muniz
v. Sabol, 517 F.3d 29, 33-34 (1st Cir. 2008); see also Francis v.
Maloney, 798 F.3d 33, 36 (1st Cir. 2015) (prisoners may invoke
§ 2241 “to challenge placement (or lack thereof) in a community
confinement center” (citing cases)). 	The petitioner bears the
burden of proving that his continuing detention violates his federal
rights. 	See Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009).
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II. 	Home Confinement
Leavitt’s § 2241 petition in this case seeks a court order
directing that he be transferred immediately to home confinement.
His petition states that if the BOP were to apply all of his FSA
earned time credits, he will be released altogether from BOP custody
in October 2024, one month earlier than the date projected by the
BOP, and a date that is approximately six months from the date when
he filed this § 2241 petition.
Leavitt’s § 2241 petition does not point to any federal law
that requires his immediate placement in home confinement. 	Home
confinement placements are generally governed by 18 U.S.C.
§ 3624(c), which states, in pertinent part:
(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. 	The Bureau of
Prisons shall, to the extent practicable, place prisoners
with lower risk levels and lower needs on home confinement
for the maximum amount of time permitted under this
paragraph.
. . . .
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18 U.S.C. § 3624(c)(1)-(2) (emphasis added). 	Section 3624(c), in
stating that prerelease custody is required only “to the extent
practicable,” makes it clear that prerelease custody “is not
guaranteed to anyone.” 	Zelaya-Romero v. United States, Nos. 15-cr-
174 (LGS) & 22-cv-1853 (LGS), 2023 WL 3001871, at *4, 2023 U.S.
Dist. LEXIS 68554, at *12 (S.D.N.Y. Apr. 19, 2023); see
also Goldings v. Winn, 383 F.3d 17, 23 (1st Cir. 2004) (§ 3624(c)
“reflects Congress’s intent to impose upon the agency a duty to
prepare prisoners for reentry into the community, without tying the
hands of administrators in deciding where prisoners are to be
placed”).
The decision whether to release a defendant on home confinement
under federal law is within the BOP’s discretion. 	United States v.
Perkins, 480 F. Supp. 3d 360, 371 (D.N.H. 2020) (citing 18 U.S.C.
§§ 3621(b), 3624(c)(2)). 	And any sentencing court “order,
recommendation, or request . . . that a convicted person serve a
term of imprisonment in a community corrections facility shall have
no binding effect” on the BOP’s exercise of that discretion. 	18
U.S.C. § 3621(b).
Leavitt has not demonstrated that the BOP’s decision regarding
where he is presently housed, and whether and when he should be
placed in home confinement, violates his federal rights.
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Accordingly, the district judge should deny Leavitt’s § 2241
petition.3
Conclusion
For the foregoing reasons, the district judge should dismiss
this § 2241 petition, without prejudice to the petitioner’s ability
to litigate that petition as a motion to clarify or supplement the
sentencing recommendation in his criminal case. 	The clerk’s office
should then enter judgment in this case and close it.
3 Leavitt appears to have intended to file this § 2241 petition
as a motion in his criminal case, United States v. Leavitt, No. 22-
cr-74-PB-02 (D.N.H.), asking the court in that matter to modify his
sentence in a manner that would direct the BOP to transfer him to
home confinement immediately. 	Leavitt’s sentence already includes
the sentencing court’s recommendation that the BOP allow Leavitt to
serve his sentence at the lowest level custody facility consistent
with his custody level, as close as possible to his family. 	See
Jt., id. (D.N.H. Apr. 13, 2023) (ECF No. 68). 	The sentencing court
cannot modify a term of imprisonment once it has been imposed,
subject to limited exceptions that do not appear to be present here.
See 18 U.S.C. 3592(c). 	The sentencing court has discretion,
however, in an appropriate case, to clarify its existing sentencing
recommendation, or to make a supplemental recommendation outside of
the judgment, which might specifically include a recommendation of
“home confinement” or halfway house placement, but that
recommendation would not be binding on the BOP. 	See, e.g., United
States v. Sirois, No. 1:11-cr-00206-JAW-2, 2018 WL 4928974, at *4,
2018 U.S. Dist. LEXIS 175207, at *11 (D. Me. Oct. 11, 2018)
(granting motion for supplemental halfway house recommendation).
Whether or not such a clarification or supplementation of the
sentencing recommendation is warranted for Leavitt is a decision to
be made by the court that sentenced him, not this court.
Accordingly, the Order this date directs the clerk’s office to
docket Leavitt’s § 2241 petition (Doc. No. 1) again as a “motion to
clarify or supplement sentencing recommendation,” in his criminal
case, with a notation in that docket cross-referencing this footnote
in this Report and Recommendation.
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Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	The objection
period may be extended upon motion. 	Failure to file any objection
within the specified time waives the right to appeal the district
court’s Order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163,
168 (1st Cir. 2016). 	Only those issues raised in the written
objections “‘are subject to review in the district court,’” and any
issues “‘not preserved by such objection are precluded on appeal.’”
Id. (citations omitted).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 1, 2024
cc: 	Joshua Leavitt, pro se
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