Falcon v. Berkebile
Filing
6
MEMORANDUM AND OPINION dismissing Petitioner's habeas claims with prejudice and to the extent Petitioner is asserting a claim concerning the conditions of confinement without prejudice. Signed by District Judge Keith Starrett on 03/14/18 (KNS)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
OSVALDO FALCON, #09333-104
VERSUS
PETITIONER
CIVIL ACTION NO. 5:17-cv-72-KS-MTP
WARDEN “UNKNOWN” BERKEBILE
RESPONDENT
MEMORANDUM OPINION
This matter is before the Court sua sponte for consideration of dismissal. Petitioner Osvaldo
Falcon, a federal inmate incarcerated at the Adams County Correctional Center (ACCC), Washington,
Mississippi, filed this petition for habeas corpus relief pursuant to 28 U.S.C. § 2241.1 As directed by
the Court’s Order [4], Petitioner filed a Response [5]. After reviewing the Petition [1] and Petitioner’s
Response [5], the Court has come to the following conclusions.
I. Background
Petitioner was sentenced on October 27, 2016, in the United States District Court for the
Southern District of Florida in United States v. Falcon, No. 1:16-cr-20513 (S. D. Fla. Oct. 27, 2016).
Pet. [1] at p.1. Petitioner complains that because he is an alien with a detainer issued for him by the
Bureau of Immigration and Customs Enforcement (ICE) the Bureau of Prisons (BOP) has classified
Petitioner with a Public Safety Factor (PSF) of “Deportable Alien.” Id. at 13. As a result of this PSF
classification, BOP is denying Petitioner the opportunity to participate in the Residential Drug Abuse
Program (RDAP) which could result in a one-year sentence reduction, denying him the ability to
participate in the Residential Reentry Center (RRC) also known as a “halfway house,” denying him a
1
Adams County Correctional Center is a contracted correctional institution operated by a
private corporation, Corrections Corporation of America. See Bureau of Prisons,
https://www.bop.gov/locations/ci/acc.
transfer to a facility closer to his family, and denying him placement in a minimum security prison also
known as a “camp.” Id. at 11. Petitioner complains that the action of the BOP violates his
constitutional rights of equal protection and due process. Id. at pp. 10-13. Finally, Petitioner
complains about the exercise yard being “too small as compared to other federal prison yards.” Id. at
12.
II. Analysis
Petitioner has filed the instant civil action as a request for habeas relief pursuant to 28 U.S.C.
§ 2241. A petitioner may attack the manner in which his sentence is being executed in the district
court with jurisdiction over his custodian pursuant to 28 U.S.C. § 2241. United States v. Cleto, 956
F.2d 83, 84 (5th Cir.1992). Petitioner’s argument that he is being deprived benefits because of his
PSF classification as a “Deportable Alien,” specifically that he is not allowed to participate in certain
BOP programs which would reduce his sentence, is properly before the Court as a § 2241 petition.
See Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012) (citing Cervante v. United
States, 402 F. App’x 886 (5th Cir. 2010).
And because the Petitioner is housed in a facility over
which this Court exercises jurisdiction when he filed the petition, jurisdiction exists to review his claim
concerning the execution of his sentence. See Lee v. Wetzel, 244 F.3d 370, 375 n.5 (5th Cir. 2001);
see also United States v. Gabor, 905 F.2d 76, 78 (5th Cir. 1990) (holding that, “[t]o entertain a § 2241
habeas petition, the district court must, upon the filing of the petition, have jurisdiction over the
prisoner or his custodian”) (emphasis added).
To the extent that Petitioner is asserting a claim concerning the conditions of his confinement,
i.e., the size of the exercise yard, such a claim is not properly before the Court as a habeas request and
will not be addressed in this Opinion. See Pierre v. United States, 525 F.2d 933, 935 (5th Cir. 1976)
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(holding that “habeas is not available to review questions unrelated to the cause of detention”). The
“sole function” for a habeas action “is to grant relief from unlawful imprisonment or custody and it
cannot be used properly for any other purpose.” Id. at 935-36.
Before a federal prisoner may proceed with a § 2241 habeas petition, he is required to exhaust
all available administrative remedies. See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993). The
Fifth Circuit has held that a challenge to the constitutionality of the BOP’s regulation excluding
prisoners with ICE detainers from participating in rehabilitation programs and halfway house
placement is not required to exhaust administrative remedies before pursuing a request for habeas
relief. See Gallegos-Hernandez, 688 F.3d at 194 (citing Taylor v. United States Treasury Dep’t, 127
F.3d 470, 477 (5th Cir. 1997). Under the circumstances of the instant petition, Petitioner is not
required to exhaust his available administrative remedies and the Court will consider the merits of
Petitioner’s habeas claims.
The United States Court of Appeals for the Fifth Circuit has held that the BOP’s exclusion of
an alien prisoner with a ICE detainer from participating in early release programs and communitybased confinement does not violate the Equal Protection Clause of the Constitution. See GallegosHernandez, 688 F.3d at 195-96. Additionally, the Court notes that Petitioner does not have a liberty
interest in being housed in a particular facility, including a facility that provides drug rehabilitation
programs. See id. at 195. Furthermore, Petitioner’s argument that because of his Cuban citizenship
he cannot be deported does not give rise to a constitutional claim. See e.g., Perez v. Lappin, 672
F. Supp. 2d 35 (D.D.C. 2009) (holding that a “Deportable Alien PSF as applied to a [] Cuban did not
violate Petitioner’s constitutional rights or violate the Administrative Procedures Act”); see also,
Duong v. Martin, 2014 WL 1665012, at *2 (S.D. Miss. April 25, 2014) (finding that a PSF
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classification of “Deportable Alien” does not implicate any constitutional interest). Petitioner
therefore fails to present a claim upon which habeas relief can be granted.
III. Conclusion
The Court has determined that the Petitioner=s habeas claims are dismissed with prejudice and
to the extent Petitioner is asserting a claim concerning the conditions of confinement, such a claim is
dismissed without prejudice.
A Final Judgment in accordance with this Memorandum Opinion and Order will be entered.2
SO ORDERED, this the
14th
day of March, 2018.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
2
A certificate of appealability (COA) is not required for a federal inmate to appeal the denial
of relief under 28 U.S.C. § 2241. See Padilla v. United States, 416 F. 424, 425 (5th Cir. 2005) (citing
Ojo, 106 F.3d at 681-82).
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