BURHYTE v. GRONDOLSKY

Filing 4

OPINION. Signed by Judge Renee Marie Bumb on 7/29/2009. (nf, )

NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY SCOTT BURHYTE, Petitioner, v. J. GRONDOLSKY, Warden, Respondent. APPEARANCES: Petitioner pro se Scott Burhyte F.C.I. Fort Dix P.O. Box 2000 Fort Dix, NJ 08640 BUMB, District Judge Petitioner Scott Burhyte, a prisoner currently confined at the Federal Correctional Institution at Fort Dix, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.1 The sole respondent is Warden J. Grondolsky. : : : : :

Civil Action No. 09-0537 (RMB) OPINION

1

Section 2241 provides in relevant part:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. (c) The writ of habeas corpus shall not extend to a prisoner unless-- ... (3) He is in custody in violation of the Constitution or laws or treaties of the United States ... .

Because it appears from a review of the Petition that Petitioner is not entitled to issuance of the writ, the Court will dismiss the Petition. I. See 28 U.S.C. § 2243. BACKGROUND

Petitioner was convicted of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, and was sentenced to a term of imprisonment of 110 months, pursuant to which he is now confined. See U.S. v. Burhyte, Criminal Action No. 05-6047

(W.D.N.Y.). Petitioner was initially classified as a "low" security level prisoner. 2006. He was transferred to F.C.I. Elkton in December

His security level was changed to minimum (camp status) on

March 13, 2007, after which he was transferred to F.C.I. Morgantown. On January 16, 2008, Petitioner was placed in the Special Housing Unit. Without the filing of any disciplinary charges or

any type of hearing, On April 14, 2008, Petitioner was transferred to a higher security level at F.C.I. Fort Dix. Petitioner alleges that his security level was raised, and he was transferred, based upon an S.I.S. investigation of false allegations of infractions. He contends that he was deprived of

2

due process when his security level was raised, and he was transferred, without a hearing.2 Petitioner alleges that he has exhausted his administrative remedies. He requests that this Court reinstate his minimum (camp) custody level and order him transferred to a Bureau of Prisons camp facility with the 500-hour Residential Drug Abuse Treatment Program. II. STANDARDS FOR A SUA SPONTE DISMISSAL

United States Code Title 28, Section 2243 provides in relevant part as follows: A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto. A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.

Petitioner does not allege that he has experienced any other "sanction" as a result of the alleged infractions. 3

2

Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Nevertheless, a federal district court can

dismiss a habeas corpus petition if it appears from the face of the petition that the petitioner is not entitled to relief. See

Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). See also 28 U.S.C. §§ 2243, 2255. III. ANALYSIS

This court lacks jurisdiction in habeas to hear Petitioner's claim. A habeas corpus petition is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement, Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973), including challenges to prison disciplinary proceedings that affect the length of confinement, such as deprivation of good time credits, Muhammad v. Close, 540 U.S. 749 (2004) and Edwards v. Balisok, 520 U.S. 641 (1997). 1242 (2005). See also Wilkinson v. Dotson, 125 S.Ct.

In addition, where a prisoner seeks a "quantum

change" in the level of custody, for example, where a prisoner claims to be entitled to probation or bond or parole, habeas is the appropriate form of action. See, e.g., Graham v. Broglin, See also

922 F.2d 379 (7th Cir. 1991) and cases cited therein.

Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 237 (3d Cir. 2005) (challenge to regulations limiting pre-release transfer to 4

community corrections centers properly brought in habeas); Macia v. Williamson, 2007 WL 748663 (3d Cir. 2007) (finding habeas jurisdiction in challenge to disciplinary hearing that resulting in sanctions including loss of good-time credits, disciplinary segregation, and disciplinary transfer). The Court of Appeals has noted, however, that "the precise meaning of `execution of the sentence' is hazy." F.3d at 237. Woodall, 432

Distinguishing Woodall, the Court of Appeals has

held that a challenge to a garden-variety transfer is not cognizable in habeas. See Ganim v. Federal Bureau of Prisons, Similarly,

235 Fed.Appx. 882, 2007 WL 1539942 (3d Cir. 2007).

here, Petitioner's challenge to the change in his security level and the transfer to a maximum security facility is not cognizable in habeas. Alternatively, to the extent this Court may exercise jurisdiction to hear this claim in habeas, it is meritless. With

respect to convicted and sentenced prisoners, "[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight." Montanye v. Haymes, 427 U.S.

236, 242 (1976), quoted in Hewitt v. Helms, 459 U.S. 460, 468 (1983), and Sandin v. Conner, 515 U.S. 472, 480 (1995). 5

Governments may confer on prisoners liberty interests that are protected by the Due Process Clause. "But these interests

will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484 (finding that disciplinary segregation conditions which effectively mirrored those of administrative segregation and protective custody were not "atypical and significant hardships" in which a state conceivably might create liberty interest). See also Asquith v. Department of

Corrections, 186 F.3d 407, 411-12 (3d Cir. 1999) (return to prison from halfway house did not impose "atypical and significant hardship" on prisoner and, thus, did not deprive him of protected liberty interest). It is well established that a prisoner possesses no liberty interest arising from the Due Process Clause in a particular custody level or place of confinement. See, e.g., Olim v

Wakinekona, 461 U.S. 238, 245-46 (1983); Hewitt, 459 U.S. at 46667; Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Montanye, 427 U.S. at 242. Thus, there is no due process violation in the decision to raise Petitioner's security level, based upon an investigation of 6

alleged infractions, or in the decision to transfer him to a higher security level institution. Cf. Day v. Nash, 191

Fed.Appx. 137, 2006 WL 2052335 (3d Cir. 2006) (no due process violation in assigning prisoner a Sex Offender Public Safety Factor). IV. CONCLUSION

For the reasons set forth above, the Petition will be dismissed without prejudice for lack of jurisdiction. In the

alternative, to the extent this Court can exercise jurisdiction in this matter, the Petition will be denied. order follows. An appropriate

s/Renée Marie Bumb Renée Marie Bumb United States District Judge Dated: July 29, 2009

7