Eric Perdomo v. Warden Loretto FCI

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: MCKEE, JORDAN and RESTREPO, Circuit Judges. Total Pages: 4. ALD-365

Case: 17-2141

Document: 003112774069

Page: 1

ALD-365

Date Filed: 11/09/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2141
___________
ERIC PERDOMO,
Appellant
v.
WARDEN LORETTO FCI
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. No. 3-16-cv-00093)
District Judge: Honorable Kim R. Gibson
____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 28, 2017
Before: MCKEE, JORDAN and RESTREPO, Circuit Judges
(Opinion filed: November 9, 2017)
_________
OPINION*
_________
PER CURIAM
Eric Perdomo, a federal inmate, filed a petition for a writ of habeas corpus under

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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28 U.S.C. § 2241 seeking to challenge the Bureau of Prison’s (“BOP”) determination that
a Greater Security Management Variable should be applied to his custody classification.
Because this appeal presents no substantial question, we will summarily affirm. See 3d
Cir. L.A.R. 27.4; I.O.P. 10.6.
In 2013, Perdomo pleaded guilty to one count of conspiracy to distribute and to
possess with the intent to deliver 500 grams or more of cocaine. He was sentenced to 80
months of incarceration, which was later reduced pursuant to 18 U.S.C. § 3582(c)(2) to
65 months of incarceration. In 2014, Perdomo was incarcerated at Satellite Prison Camp
Gilmer in Glenville, West Virginia, a minimum security facility. After it was determined
that Perdomo had extorted another inmate, a Greater Security Management Variable was
applied to Perdomo’s custody classification.1 Thereafter, Perdomo was transferred to
Federal Correctional Institution at Loretto, Pennsylvania, a low security facility.
Perdomo filed administrative grievances arguing that his custody classification violated
BOP policies, but he did not obtain relief.
Perdomo then filed a petition for writ of habeas corpus in the United States
District Court for the Western District of Pennsylvania. After receiving a response,
Magistrate Judge Cynthia Reed Eddy recommended Perdomo’s petition be dismissed for
lack of jurisdiction. The District Court overruled Perdomo’s objections and dismissed
the petition. Perdomo appeals.

1

When the BOP concludes that an inmate represents a greater security risk than his
normal security level would suggest, he is assigned a Greater Security Management
Variable. See BOP Program Statement 5100.08.
2

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A certificate of appealability is not required to appeal the dismissal of a § 2241
petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009). We thus have
jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s decision to
dismiss Perdomo’s § 2241 petition is plenary. See Cradle v. U.S. ex rel. Miner, 290 F.3d
536, 538 (3d Cir. 2002) (per curiam).
Perdomo’s challenge to his custody classification is not cognizable in a § 2241
petition because he does not challenge the fact or duration of his imprisonment, which is
the “essence of habeas corpus.” See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
Nor does he challenge the execution of his sentence within the exception provided for in
Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). In Woodall, we
held that a prisoner could bring a § 2241 petition challenging a BOP regulation that
limited placement in a Community Corrections Center because the BOP was not
“carrying out” Woodall’s sentence as directed. Specifically, we determined that
Woodall’s claims “crossed[ed] the line beyond a challenge to, for example, a garden
variety prison transfer.” Id. at 243. “[T]o challenge the execution of his sentence under
§ 2241, [an inmate] would need to allege that BOP’s conduct was somehow inconsistent
with a command or recommendation in the sentencing judgment.” Cardona v. Bledsoe,
681 F.3d 533, 537 (3d Cir. 2012). Here, Perdomo does not allege that his custody
classification or his resulting transfer conflict with his sentence. Indeed, Perdomo does
not argue the sentencing court expressed any view about the appropriate security
designation for him. Instead, Perdomo’s claims are much more akin to challenges to the
“garden variety” custody levels that Woodall indicated were excluded from the scope of
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§ 2241. Thus, the District Court correctly dismissed Perdomo’s § 2241 petition.
In his objections to the Magistrate Judge’s report and recommendation, Perdomo
conceded that his challenge to his custody classification was not cognizable under
§ 2241. Perdomo argued that the District Court should construe his petition as an action
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971) or as an action for declaratory relief. Given the significant differences
between the rules and fees applicable to a prisoner’s general civil litigation case and a
request for habeas relief, we cannot conclude that the District Court abused its discretion
in denying Perdomo’s request to have his § 2241 petition re-characterized as a Bivens
action.
Accordingly, we will summarily affirm the judgment of the District Court.

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