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BOSTON � A recent 1st U.S. Circuit Court of Appeals decision giving the Federal Bureau of Prisons the authority to make a rule barring the placement of prisoners in a community corrections center during the first 90% of their sentences has created a split in the circuits. “While we are loathe to create a circuit split, we respectfully side with the dissenters,” wrote Circuit Judge Jeffrey R. Howard. The Bureau of Prisons may make rules of general applicability to guide the individualized application of its discretion. Of course those rules must conform to the strictures of the Administrative Procedures Act.” Muniz v. Sabol, Nos. 06-2692, 06-2693 (1st Cir.) In its opinion, the 1st Circuit noted that each of the four contrary circuits opinions included a dissent. Wedelstedt v. Wiley, 477 F.3d 1160 (10th Cir. 2007); Levine v. Apker, 455 F.3d 71 (2nd Cir. 2006); Fults v. Sanders, 442 F.3d 1088 (8th Cir. 2006); Woodall v. Fed. Bureau of Prisons, 432 F. 3d 235 (3rd Cir. 2005) The Federal Public Defender Office in Massachusetts, which represented the petitioners in the appeal, did not return calls for comment. The petitioners, who sought writes of habeas corpus on the grounds that bureau regulations delaying transfer to a community corrections center were invalid because they opposed the bureau’s statutory mandate. The district court granted the petitions, but consolidated the cases for an appeal of the issue because the court found there was a “controlling question of law” that had generated “substantial ground for difference of opinion.” Muniz v. Winn, No. 4:06-cv-40162; Gonzalez v. Winn, No. 4:06-cv-40173 (D. Mass.) “This issue cries out for authoritative, prompt, precedential resolution in the first circuit,” wrote judge William G. Young in a November 2006 order. “The judges in this District are divided; the inmates at FMC-Devens are apparently all apprised of this issue and form pleadings circulate freely among them, producing repetitive, time consuming and only marginally productive litigation.” The office of the U.S. Attorney for the District of Massachusetts argued the government’s case. In a statement, a spokesperson for the office said the regulations in question were in place because so-called residential re-entry centers, or halfway houses, are appropriate for inmates near the end of their sentences. They are “not an appropriate place of imprisonment for individuals convicted of federal crimes to serve the first 90%” of their sentences, said the spokesperson. “This Office is gratified that the First Circuit has upheld the authority of the Bureau of Prisons to adopt the regulations at issue.”

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