DE LA CRUZ v. ZICKEFOOSE
Filing
12
OPINION FILED. Signed by Judge Noel L. Hillman on 6/29/11. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LUIS D. DE LA CRUZ,
:
Civil Action No. 10-3325 (NLH)
Petitioner,
:
v.
:
DONNA ZICKEFOOSE,
:
Respondent.
OPINION
:
APPEARANCES:
Petitioner pro se
Luis D. De La Cruz
F.M.C. - Devens - Unit N4
P.O. Box 879
Ayer, MA 01432
Counsel for Respondent
Kristin Lynn Vassallo
Asst. U.S. Attorney
970 Broad Street
Newark, NJ 07102
HILLMAN, District Judge
Petitioner Luis D. De La Cruz, a prisoner previously
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
Donna Zickefoose.
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 ... .
I.
BACKGROUND
For a number of years, beginning at least in 1999 and
continuing until his arrest in 2001, Petitioner Luis D. De La
Cruz was involved in the distribution of heroin in and around
Lawrence, Massachusetts.
See United States v. De La Cruz, 514
F.3d 121, 125-26 (1st Cir. 2008).
On February 14, 2006,
following his conviction on various drug offenses, Petitioner was
sentenced to a term of twenty years’ imprisonment to be followed
by five years’ supervised release.
Id. at 128.
At the time of his conviction, Petitioner was classified by
the Bureau of Prisons as a deportable alien.2
At the time of his conviction, Petitioner had not earned a
high school diploma; therefore, he participated in the Spanishlanguage GED program from October 10, 2006 to February 28, 2007.
On February 28, 2007, having completed 254 instructional hours,
Petitioner withdrew from the GED class at the United States
Penitentiary in Atlanta, Georgia.
He was placed in “GED
unsatisfactory” status as of that date.
On August 11, 2008,
while confined at F.C.I. Fort Dix, in New Jersey, Petitioner re-
2
In this regard, the Court notes that Petitioner (a native
of the Dominican Republic) filed in this Court, in August 2009, a
Petition for an order establishing derivative citizenship through
the naturalization of his mother, pursuant to 8 U.S.C.
§ 1432(a)(3), which he later withdrew upon approval of his N-600
application for certificate of citizenship. See De La Cruz v.
Unknown, Civil No. 09-4450 (D.N.J.). The N-600 application for
certificate of citizenship is for use by an individual to
document U.S. citizenship status based on citizen parentage.
2
enrolled in the literacy program.
On November 5, 2008,
Petitioner completed the GED program and earned his GED.
Based on his “GED unsatisfactory” status from February 28,
2007, till August 11, 2008, Petitioner was awarded 42 days good
conduct time for the periods from March 22, 2006, through March
21, 2007, (the “2007 GCT”) and from March 22, 2007, though March
21, 2008 (the “2008 GCT”).3
On April 16, 2010, the Bureau of Immigration and Customs
Enforcement adjudicated Petitioner’s N-600 Application for
certificate of citizenship and administered the Oath of
allegiance, thereby finalizing Petitioner’s U.S. citizenship.
Here, Petitioner asserts that the Bureau of Prisons refused
to award him the maximum 54 days good conduct time in 2007 and
2008, arbitrarily and in violation of his due process rights.4
3
Good conduct time is calculated at the end of each year
that an inmate serves. See 18 U.S.C. 3624(b); Barber v. Thomas,
130 S.Ct. 2504 (2010). Because Petitioner earned jail credit
starting on March 22, 2001, his good conduct time is calculated
on March 21 of each subsequent year.
4
Petitioner appears to have exhausted his administrative
remedies before filing this Petition.
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, a federal prisoner ordinarily may not bring a
petition for writ of habeas corpus under 28 U.S.C. § 2241,
challenging the execution of his sentence, until he has exhausted
all available administrative remedies. See, e.g., Callwood v.
Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v. United States
Parole Comm’n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v.
Alldredge, 481 F.2d 303, 306 (3d Cir. 1973).
In general, the BOP Administrative Remedy Program is a
3
Respondent has answered that the 2007 GCT and 2008 GCT were
properly calculated.
This matter is now ready for decision.
II.
LEGAL STANDARD
“Habeas corpus petitions must meet heightened pleading
requirements.”
McFarland v. Scott, 512 U.S. 849, 856 (1994).
A
petition must “specify all the grounds for relief” and must set
forth “facts supporting each of the grounds thus specified.”
See
Rule 2(c) of the Rules Governing § 2254 Cases in the U.S.
District Courts (amended Dec. 1, 2004) (“Habeas Rules”), made
applicable to § 2241 petitions through Rule 1(b) of the Habeas
Rules.
Nevertheless, a pro se pleading is held to less stringent
standards than more formal pleadings drafted by lawyers.
Estelle
multi-tier process that is available to inmates confined in
institutions operated by the BOP for “review of an issue which
relates to any aspect of their confinement.” 28 C.F.R. § 542.10.
Response times for each level of review are set forth in 28
C.F.R. § 542.18. An inmate must initially attempt to informally
resolve the issue with institutional staff. 28 C.F.R. §
542.13(a). If informal resolution fails or is waived, an inmate
may submit a BP-9 Request to “the institution staff member
designated to receive such Requests (ordinarily a correctional
counsel)” within 20 days of the date on which the basis for the
Request occurred, or within any extension permitted. 28 C.F.R.
§ 542.14. An inmate who is dissatisfied with the Warden’s
response to his BP-9 Request may submit a BP-10 Appeal to the
Regional Director of the BOP within 20 days of the date the
Warden signed the response. 28 C.F.R. § 542.15(a). The inmate
may appeal to the BOP’s General Counsel on a BP-11 form within 30
days of the day the Regional Director signed the response. Id.
Appeal to the General Counsel is the final administrative appeal.
Id. If responses are not received by the inmate within the time
allotted for reply, “the inmate may consider the absence of a
response to be a denial at that level.” 28 C.F.R. § 542.18.
4
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. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
III.
A.
ANALYSIS
The Statutory and Regulatory Framework
Federal law provides that federal prisoners may receive
credit toward the service of their sentences for satisfactory
behavior, subject to (among other things) an inmate’s completion
of, or “satisfactory progress” toward, a GED credential or high
school diploma, as follows in pertinent part:
(1) Subject to paragraph 2, a prisoner who is serving
a term of imprisonment of more than 1 year[,] other
than a term of imprisonment for the duration of the
prisoner’s life, may receive credit toward the service
of the prisoner’s sentence, beyond the time served, of
up to 54 days at the end of each year of the prisoner’s
term of imprisonment, beginning at the end of the first
year of the term, subject to determination by the
Bureau of Prisons that, during that year, the prisoner
has displayed exemplary compliance with institutional
disciplinary regulations. Subject to paragraph 2, if
the Bureau determines that, during that year, the
prisoner has not satisfactorily complied with such
institutional regulations, the prisoner shall receive
no such credit toward service of the prisoner’s
sentence or shall receive such lesser credit as the
Bureau determines to be appropriate. In awarding
credit under this section, the Bureau shall consider
whether the prisoner, during the relevant period, has
earned, or is making satisfactory progress toward
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earning, a high school diploma or an equivalent degree.
...
(4) Exemptions to the General Educational Development
requirement may be made as deemed appropriate by the
Director of the Federal Bureau of Prisons.
18 U.S.C. § 3624(b).5
The Bureau of Prisons has promulgated a regulation governing
the award of good conduct time credits under § 3624(b).
(c) For inmates serving a sentence for an offense
committed on or after April 26, 1996, the Bureau will
award
(1) 54 days credit for each year served ... if the
inmate has earned or is making satisfactory
progress toward earning a GED credential or high
school diploma; or
(2) 42 days credit for each year served ... if the
inmate has not earned or is not making
satisfactory progress toward earning a GED
credential or high school diploma.
(d) Notwithstanding the requirements of paragraphs (b)
and (c) of this section, an alien who is subject to a
final order of removal, deportation, or exclusion is
eligible for, but is not required to, participate in a
literacy program, or to be making satisfactory progress
toward earning a General Educational Development (GED)
credential, to be eligible for a yearly award of good
conduct time.
(e) The amount of good conduct time awarded for the
year is also subject to disciplinary disallowance ... .
28 C.F.R. § 523.20 (emphasis added).
See also Bureau of Prisons
Program Statement 5884.03, Good Conduct Time.
5
“Paragraph 2" referred to in the text of § 3624(b)(1)
establishes the date on which such good-conduct time vests.
6
BOP regulations further provide that an inmate “shall be
deemed to be making satisfactory progress toward earning a GED
credential or high school diploma” unless and until one of the
following occurs:
(i) The inmate refuses to enroll in the literacy
program;
(ii) The inmate has been found to have committed a
prohibited act that occurred in a literacy program
during the last 240 instructional hours of the inmate’s
most recent enrollment in the literacy program; or
(iii) The inmate has withdrawn from the literacy
program.
28 C.F.R. § 544.73(b)(1).
See also BOP Program Statement
5350.28, Literacy Program (GED Standard).
A second statutory education provision, establishing a
mandatory “functional literacy” program requirement, is set forth
at 18 U.S.C. § 3624(f).
(1) The Attorney General shall direct the Bureau of
Prisons to have in effect a mandatory functional
literacy program for all mentally capable inmates who
are functionally literate ... .
(2) Each mandatory functional literacy program shall
include a requirement that each inmate participate in
such program for a mandatory period sufficient to
provide the inmate with an adequate opportunity to
achieve functional literacy, and appropriate incentives
which lead to successful completion of such programs
shall be developed and implemented.
(3) As used in this section, the term “functional
literacy” means -(A) an eighth grade equivalence in reading and
mathematics on a nationally recognized
standardized test;
7
(B) functional competency or literacy on a
nationally recognized criterion-referenced test;
or
(c)
a combination of subparagraphs (A) and (B).
(4) Non-English speaking inmates shall be required to
participate in an English-As-A-Second-Language program
until they function at the equivalence of the eighth
grade on a nationally recognized educational
achievement test.
18 U.S.C. § 3624(f).
Pursuant to the regulations promulgated by the BOP to
implement the mandatory functional literacy requirement, most
federal inmates who do not have a high school diploma or GED are
required to “attend an adult literacy program for a minimum of
240 instructional hours or until a GED is achieved, whichever
occurs first.”
28 C.F.R. § 544.70.
Exempted from this
requirement are, among other specified categories of inmates,
“sentenced deportable aliens.”
28 C.F.R. § 544.71(a)(3).6
6
The term “sentenced deportable alien” is defined in
Program Statement 5350.28, Section 9 (c).
c.
Who is a sentenced deportable alien?
An inmate is a sentenced deportable alien, and
does not need to participate in the literacy
program, if he/she is:
•
•
assigned a Public Safety Factor ‘H’ status of
“Alien” (see the Security Designation and
Custody Classification Manual) or
under a final Bureau of Immigration and
Customs Enforcement (BICE) (formerly the
Immigration and Naturalization Service (INS))
order of deportation, exclusion, or removal.
...
8
For those inmates who are subject to the mandatory
“functional literacy” requirement, failure to comply can result
in disciplinary action.
See 28 C.F.R. § 544.75.
BOP Program Statement 5330.28, Section 9(d), specifically
addresses the relationship of the mandatory “functional literacy”
program requirement, arising out of 18 U.S.C. § 3624(f), to the
“satisfactory progress” toward GED requirement, a statutory
consideration in the award of good conduct time, arising out of
18 U.S.C. § 3624(b).
d.
How does the sentenced deportable alien exemption
affect the good conduct time of these inmates?
Although sentenced deportable aliens are exempt
from attending the literacy program for the
mandated 240 instructional hours, they are still
subject to the satisfactory progress literacy
provision of the VCCLEA or the PLRA.
To vest their earned Good Conduct Time (GCT) or be
eligible for the maximum amount of GCT, deportable
aliens without a verified high school diploma or a
GED who are sentenced under the VCCLEA or the PLRA
must meet the satisfactory progress provision of
these two acts specified in Section 17 of this PS.
Program Statement 5330.28, Section 9(d).
B.
Due Process Considerations
Convicted and sentenced prisoners retain the protections of
the Due Process Clause of the Fifth and Fourteenth Amendments
that the government may not deprive them of life, liberty, or
property without due process of law.
See Wolff v. McDonnell, 418
U.S. 539, 556 (1974); Haines v. Kerner, 404 U.S. 519 (1972);
9
Wilwording v. Swenson, 404 U.S. 249 (1971).
Such protections
are, however, “subject to restrictions imposed by the nature of
the regime to which [prisoners] have been lawfully committed.
...
In sum, there must be mutual accommodation between
institutional needs and objectives and the provisions of the
Constitution that are of general application.”
Wolff, 418 U.S.
at 556.
A liberty interest protected by the Due Process Clause may
arise from either of two sources:
or from state or federal law.
the Due Process Clause itself
See Hewitt v. Helms, 459 U.S. 460,
466 (1983); Asquith v. Department of Corrections, 186 F.3d 407,
409 (3d Cir. 1999).
Federal prisoners have a liberty interest in statutory good
conduct time credits.
720 (3d Cir. 2009).
See McGill v. Martinez, 348 Fed.Appx. 718,
Where the government has created a right to
good time credits, and has recognized that a prisoner’s
misconduct authorizes deprivation of the right to good time
credits as a sanction,7 “the prisoner’s interest has real
substance and is sufficiently embraced within Fourteenth
Amendment ‘liberty’ to entitle him to those minimum procedures
7
The Constitution itself does not guarantee good time
credits for satisfactory behavior in prison. Congress, however,
has provided that federal prisoners serving a term of
imprisonment for more than one year, other than a term of
imprisonment for the duration of the prisoner’s life, may receive
credit toward the service of their sentence based upon their
conduct. See 18 U.S.C. § 3624(b); 28 C.F.R. § 523.20.
10
appropriate under the circumstances and required by the Due
Process Clause to insure that the state-created right is not
arbitrarily abrogated.”
Wolff, 418 U.S. at 557.
By contrast, here, the relevant statutory and regulatory
framework affords a maximum of only 42 days annual good conduct
time unless a prisoner is making “satisfactory progress” toward a
GED diploma.
Based upon this regulatory maximum, some courts
have held that federal prisoners who are not making “satisfactory
progress” toward a GED diploma have no liberty interest in the
incremental 12 days of good conduct time that is available to
prisoners who are making such “satisfactory progress.”
See,
e.g., Holman v. Cruz, 2008 WL 5244580 (D.Minn. 2008).
In any event, to the extent federal prisoners have a liberty
interest in 54 days of good conduct time credit per year, as
opposed to the 42 days maximum credit for which they are eligible
even if they are not making satisfactory progress toward a GED
diploma, they are entitled to notice and an opportunity to be
heard with respect to any deprivation of that liberty interest.
See generally Mathews v. Eldridge, 424 U.S. 319, 332-35 (1976).
This Court will assume, without deciding, that Petitioner had a
liberty interest in the maximum 54 days annual good conduct time.
C.
Petitioner’s Claims
Petitioner asserts that the award of only 42 days of 2007
GCT and 2008 GCT was arbitrary and in violation of his due
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process rights.
Petitioner also asserts that his GED instructor
told him that, as an alien, he did not have to stay in the
literacy program after he had completed 240 hours of instruction,
but that his instructor did not advise him that withdrawal would
have a negative impact on his eligibility for the maximum annual
good conduct time.
Petitioner asserts that he would not have
withdrawn if he had known about the effect on his eligibility for
the additional 12 days of annual good conduct time.
It is clear that Petitioner is confusing the two educational
provisions of 18 U.S.C. §§ 3624(b) and (f).
As advised by his
GED instructor, Petitioner was not disciplined for withdrawing
from the “functional literacy” program, under 18 U.S.C. § 3624(f)
and its implementing regulations, as he had completed 240 hours
prior to that withdrawal.
Moreover, whether or not he was
improperly classified as an “alien,” it is undisputed that he was
never subject to a final order of removal.
Thus, whether or not
he was improperly classified as an alien, to the extent he wished
to earn the maximum 54 days annual good conduct time, he was
required to make “satisfactory progress” toward earning a GED.
This, it is undisputed, he failed to do in 2007 and 2008.
The requirements for earning the maximum 54 days annual good
conduct time, with respect to the educational component, are
clearly set forth in the statutes, regulations, and program
statements referenced in this Opinion.
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Petitioner was
immediately placed on “GED unsatisfactory” status when he
withdrew from the literacy program and the BOP administrative
remedy procedure was available for him to challenge the change in
his status and the award of only 42 days good conduct time in
2007 and 2008.
Indeed, he did so utilize the administrative
remedy procedure.
The Bureau of Prisons correctly applied the applicable
statutes and regulations and afforded Petitioner all appropriate
process to challenge the award of 42 days good conduct time in
2007 and 2008.
Petitioner is not entitled to relief.
See, e.g.,
Reyes-Morales v. Wells, 766 F.Supp.2d 1349 (S.D. Ga. 2011);
Delgado-Ortiz v. Holencik, 2010 WL 1222271 (C.D. Cal. Jan. 28,
2010), Report and Recommendation Adopted, 2010 WL 1178061 (C.D.
Cal. Mar. 25, 2010); Holman v. Cruz, 2008 WL 5244580 (D.Minn.
Dec. 15, 2008).
IV.
CONCLUSION
For the reasons set forth above, the Petition will be
denied.
An appropriate order follows.
At Camden, New Jersey
/s/ Noel L. Hillman
Noel L. Hillman
United States District Judge
Dated: June 29, 2011
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