Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 99 C 99--Larry J. McKinney, Chief Judge.
Before Cudahy, Diane P. Wood, and Evans, Circuit
The opinion of the court was delivered by: Diane P. Wood, Circuit Judge
Jenkie Bunn is a federal prisoner who does not want the U.S. prison authorities to notify local law enforcement personnel upon his release of the fact that he was convicted of a crime of violence. Regulations of the Bureau of Prisons (BOP) provide for such notifications, under certain circumstances. Our problem here, however, is to decide whether Bunn brought the right kind of case, in the right kind of court, against the right defendant. What he did was to file an action for declaratory relief to prevent the Warden of United States Penitentiary at Terre Haute, Indiana (USP Terre Haute), where he was then incarcerated, from making such a notification when the time came. The district court construed his action as a petition for a writ of habeas corpus, asserted jurisdiction over the case, and denied Bunn his requested relief, finding that the BOP had properly classified him as an inmate subject to the notification rules. With full appreciation for the procedural complexity of these matters, we conclude that the district court erred in so doing and that the case must be remanded for further proceedings.
On February 19, 1995, Jenkie Bunn was seen chasing two men with a shotgun and firing upon them. State authorities declined to prosecute him for this conduct. The federal government, knowing that Bunn had a felony conviction on his record, did not wish to overlook the incident. Instead, it prosecuted Bunn for possession of ammunition by a felon in violation of 18 U.S.C. § 922(g). He was found guilty and sentenced to 120 months' imprisonment and three years of supervised release. His projected release date is November 4, 2004.
On October 9, 1996, Bunn was placed in confinement at USP Terre Haute, where Harley G. Lappin was, at the time, the warden. Lappin was replaced by Keith E. Olson in the fall of 2001--after the filing of this action. On November 8, 2001, Bunn was transferred to FCI Beckley, where the warden is Joyce K. Conley. (Despite the fact that Bunn was transferred to a place outside this circuit, the jurisdiction of the district court and hence our appellate jurisdiction is determined by his place of incarceration at the time the suit was filed. We are therefore satisfied that his later transfer has no effect on our ability to entertain this appeal. See Ward v. United States Parole Comm'n, 804 F.2d 64, 66 (7th Cir. 1986); Corgain v. Miller, 708 F.2d 1241, 1245-46 (7th Cir. 1983).)
A. The Notification Scheme
Under 18 U.S.C. § 4042(b), which took effect on September 13, 1994, the BOP must notify the chief law enforcement officer of the state and of the relevant local jurisdiction prior to a prisoner's release (or transfer while on supervised release to a new jurisdiction) whenever a prisoner convicted of "a crime of violence (as defined in section 924(c)(3))" is being released or transferred. 18 U.S.C. § 4042(b)(3)(B).
Program Statement (PS) 5110.11, effective at the time of Bunn's confinement at USP Terre Haute, set forth BOP procedures for these notifications. A program statement is an "internal agency guideline . . . which is akin to an interpretive rule that do[es] not require notice and comment." Reno v. Koray, 515 U.S. 50, 61 (1995) (citations omitted). PS 5110.11 defined a "crime of violence" to include several subcategories, including a felony that has "as an element the use, attempted use, or threatened use of physical force against the person or property of another"; or "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Clarifying instructions were provided in a separate, cross-referenced program statement PS 5162.02. PS 5110.11 provided that a unit team staff member must complete a notification statement at each program review--a twice-yearly meeting between the inmate and prison staff. The unit team management staff had the responsibility of preparing the forms for Notification of Prisoner Release. The sample form attached to PS 5110.11 provided a name and signature line for the warden or community corrections manager.
PS 5110.11 was replaced by PS 5110.12 on January 21, 1998. The new statement required the case managers to "make their own determination [of the need for notification], based on the narrative description of the crime contained in the Presentence Investigation Report (PSR)," as opposed to merely relying on the PSR's conclusions or making a generalized determination based on the crime of conviction. "Specifically, a determination should be made as to whether the crime has an element of use, attempted use or threatened use of force, or if the offense, by its nature, posed a substantial risk that force would be used." PS 5110.12(6)(b). Section 7(b)(2) further provides that an inmate will be subject to the notification requirement if her "criminal history as determined by staff in the exercise of their professional judgment includes a conviction for . . . 'a crime of violence' as defined in section 6.a. or 6.b." PS 5110.12 was in place at the time of Bunn's administrative complaints and through his filing of this lawsuit on April 19, 1999. Using the system laid out in PS 5110.12, the case managers found that Bunn was subject to the notification requirement.
PS 5110.12 was itself replaced by PS 5110.15 on August 30, 2000--after the district court dismissed Bunn's case. PS 5110.15 provides that a crime of violence is a felony and "has as an element, the use, attempted use, or threatened use of physical force against the person or property of another" or "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense (see 18 U.S.C. § 924(c)(3))." Section 9(b)(2) requires the exercise of professional judgment by the prison staff in the determination of applicability of the provision. That section also says that "[n]otification must not be issued for an offense listed in Section 7 of the Categorization of Offenses Program Statement" (COPS). Section 7 of the COPS, in turn, lists felonies that "involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives." It thus appears that under the later PS 5110.15, notification would not be appropriate for Bunn, at least with respect to his conviction for possession of ammunition. However, as PS 5110.15 makes clear, "if the inmate also has a . . . prior violent offense, relative notification should be processed accordingly." Bunn may therefore still be subject to notification because of his prior crimes of violence: second degree murder, two assaults with a deadly weapon, assault for pointing a firearm at a person, and assault inflicting serious injury.
At the time Bunn received his first review by BOP officials (when PS 5110.11 was in place), they found him eligible for notification. Throughout his time at USP Terre Haute, he received periodic reviews, and each of them resulted in a recommendation for notification. There is no evidence in the record that Bunn's ...