October 02, 2004

Goldings v. Winn Update from Peter Goldberger via BOP Watch

Peter Goldberger, has updated information on Goldings v. Winn, as reflected from this post at BOPWatch:
On 9/9/04 the First Circuit released its lengthy opinion in Goldings v. Winn, totally invalidating the BoP's policy limiting designation of CCCs for service of sentences of imprisonment, as well as its practice of limiting CCC utilization at the end of sentences to no more than 10% of the time to be served (not to exceed 6 mos.). On 9/27/04, according to the appellate docket, the DOJ informed the First Circuit that it would not be petitioning in this case for rehearing, and informing the Court 'that the Bureau of Prisons staff have been instructed to commence re-evaluation of Appellant's placement.'

Accordingly, on 9/30/04 the Court issued its mandate to the district court for enforcement of the decision. The Goldings decision is now binding precedent on all district judges and on all Bureau institutions and personnel within the First Circuit (Mass., NH, ME, RI and PR). Hopefully, it will also be highly persuasive precedent in all the rest of the federal districts throughout the country.

-- Peter Goldberger,
Ardmore, PA
We had earlier posted information on Goldings v. Winn here ("Must Read: Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004)") and here ("A Healthy Exchange on Goldings v. Winn").

Also at BOPWatch, Howard O. Kieffer apparently confirms Peter Goldberger's belief as to the persuasiveness of Goldings v. Winn:
In the face of the 1st Circuit's Goldings opinion, with oral argument scheduled for next Friday (October 8, 2004), and the panel disclosed (Tashima, Paez and Pregerson), the Gov't has agreed to "allow" service of a Zone C sentence in a CCC, instead of a prison camp - in exchange for the dismissal of the appeal.

Not only will they "let" her serve the sentence in a CCC, but the CCC of her choice. This is exactly what they did with Montgomery in the 6th Circuit in July. Of course, the Gov't doesn't have to agree to any stipulated order "reversing" the denial of habeas and remanding for implementation of the parties' agreement that she be designated to the CCC for the full term of her sentence. And of course, they also do not have to even make a request that the underlying District Court decision be depublished.

This appeal would have/could have invalidated the Bureau's policy limiting designation of CCCs for service of sentences of imprisonment within the Ninth Circuit (as the First Circuit has done recently).
Sounds all good! We have asked Howard O. Kieffer to provide us with the case citations or docket numbers for the 9th Circuit and will update as soon as we get them.

UPDATE: Howard O. Kieffer at BOPWatch reports here:
The case is Benton v. Ashcroft, 272 F.Supp.2d 1139 (S.D.Cal. 2003), where Judge Moskowitz essentially adopted the BOP’s 10% Rule in its entirety. In large part he reasoned that the BOP’s new policy was interpretive, rather than substantive, in nature, and thus was exempt from the notice and comment requirements of the APA.

The Docket No. for the Ninth Circuit appeal from this decision is 03-56343.

While the oral argument is not yet off calendar, it is a done deal but for the 9th Circuit granting the motion for voluntary dismissal. The prosecutor would not agree as part of this deal to a vacatur of the district court decision but he said it was something we could address at a later point. There are now documents in the court record which indicate, however, that BOP did not apply this rule to this client, thus undermining their "no discretion to deviate" argument.
  • Howard O. Kieffer
  • Federal Defense Associates
  • Santa Ana, California
Many thanks to Peter and Howard for the information. I have in past days notified the Acting Attorney Advisor at MDC-Guaynabo (Puerto Rico) as to whether they were aware of the decision and whether they were acting in accordance with the ruling. I have gotten no reply from the Acting Attorney Advisor, and there is a new Attorney Advisor who hails from the U.S. Attorney's Office but I do not even know if he has already commenced working there. I will write them again. Perhaps a inquiry from our Federal Public Defender (who also sits on PRACDL's Board -- are you reading Joe?) might get a faster response. Will post as soon as I have an answer. Or, if anyone else does, please add a comment to this post.