MINOR v. ZICKEFOOSE
Filing
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OPINION. Signed by Judge Noel L. Hillman on 11/30/2012. (dmr)(nm)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Petitioner,
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v.
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DONNA ZICKEFOOSE,
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Respondent.
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KENNETH CORTEZ MINOR,
Civil Action No. 12-3927 (NLH)
O P I N I O N
APPEARANCES:
Kenneth Cortez Minor, Pro Se
28862-016
Federal Correctional Institution
P.O. Box 2000
Fort Dix, NJ 08640
Paul A. Blaine
Assistant U.S. Attorney
Office of the U.S. Attorney
Camden Federal Bldg & Courthouse
401 Market Street, 4th Floor
Camden, NJ 08101
Attorney for Respondent
HILLMAN, District Judge
Petitioner Kenneth Cortez Minor, 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.
Donna Zickefoose.
The respondent is the warden,
Respondent filed a Response to the petition
and the administrative record of the case (docket entry 5).
Petitioner replied to Respondent’s filing (docket entry 6).
Because it appears from a review of the submissions and
record that Petitioner does not have jurisdiction under 28 U.S.C.
§ 2241 to assert his claims, the petition will be dismissed.
BACKGROUND
On December 3, 2007, Petitioner was sentenced in the United
States District Court, District of Maryland to a 168-month term
of imprisonment for conspiracy to distribute controlled
substances.
With all good conduct time available, he is
projected to be released on April 15, 2018.
According to the
record of the case, upon Petitioner’s entry into Bureau of
Prisons (“BOP”) custody the BOP determined Petitioner’s Public
Safety Factor (“PSF”), designed to ensure that inmates are placed
in the appropriate facility.
Based on the Pre-Sentence
Investigation, Petitioner fired two shots from a handgun at a
closed door as law enforcement officers approached.
5).
(Answer, p.
The BOP determined that his PSF qualified as Greatest
Severity.
Petitioner argues in his petition that the BOP has
misinterpreted the Program Statement concerning PSF assignment,
amounting to an “atypical and significant hardship” in violation
of his due process rights.
(Petition, Memorandum of Law).
Specifically, he argues that his “instant offense” is consipiracy
to distribute cocaine, not the “post-offense conduct” of firing
the shots.
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Petitioner asks this Court to remand his case to the BOP for
a redetermination of his PSF.
DISCUSSION
A.
Standards of Review
Petitioner brings his habeas petition as a pro se litigant.
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers.
See 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.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399
U.S. 912 (1970).
Section 2241 of Title 28 of the United States Code provides
in relevant part:
(c) The writ of habeas corpus shall not extend to a
prisoner unless—... He is in custody in violation of
the Constitution or laws or treaties of the United
States.
28 U.S.C. § 2241(a), (c)(3).
B.
Lack of Jurisdiction
A habeas petition is the proper mechanism for an inmate 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
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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).
See also Wilkinson v. Dotson, 544 U.S. 74 (2005).
Habeas corpus is an appropriate mechanism, also, for a federal
prisoner to challenge the execution of his sentence.
See Coady
v. Vaughn, 251 F.3d 480, 485–86 (3d Cir. 2001); Barden v.
Keohane, 921 F.2d 476, 478–79 (3d Cir. 1990).
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, 922 F.2d 379 (7th Cir. 1991) and cases
cited therein.
In this case, however, Petitioner's challenge regarding his
custody classification or PSF does not affect the fact or the
length of his incarceration.
unavailable to him.
Consequently, habeas relief is
See
The Court of Appeals for the Third Circuit has explained
that:
whenever the challenge ultimately attacks the “core of
habeas” the validity of the continued conviction or the
fact or length of the sentence challenge, however
denominated and regardless of the relief sought, must
be brought by way of a habeas corpus petition.
Conversely, when the challenge is to a condition of
confinement such that a finding in plaintiff's favor
would not alter his sentence or undo his conviction, an
action under § 1983 is appropriate.
Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002).
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Recently, the Court of Appeal for the Third Circuit
revisited this issue in Cardona v. Bledsoe, 681 F.3d 533 (3d Cir.
2012).
In that case, the court of appeals reiterated that in
order to invoke § 2241 jurisdiction, a petitioner must challenge
the execution of his sentence.
See Cardona, 681 F.3d at 535
(citing Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d
Cir. 2005))(other citation omitted).
While admitting that the
“‘precise meaning of ‘execution of sentence’ is hazy,” the court
of appeals specified that: “In order to challenge the execution
of his sentence under § 2241, Cardona would need to allege that
BOP's conduct was somehow inconsistent with a command or
recommendation in the sentencing judgment.”
Id. at 536-37
(quoting Woodall, supra, at 242)(footnote omitted).
Because
Cardona’s petition did “not concern how BOP is ‘carrying out’ or
‘putting into effect’ his sentence, as directed in his sentencing
judgment,” he did not challenge the execution of his sentence,
and therefore, there was no § 2241 jurisdiction.
Id. at 537.
In the present case, Petitioner's claims plainly involve
conditions of prison life, not the fact or duration of his
incarceration.
Nor do they concern or challenge how the BOP is
carrying out the mandates of his sentencing judgment.
He simply
seeks a lower custody classification so that he may reap the
benefits of the lower status.
Thus, this action is more properly
brought in an action under the Declaratory Judgments Act, 28
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U.S.C. §§ 2201–2202, or in a civil rights complaint under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971).1
Consequently, the petition will be dismissed without
prejudice to any right Petitioner may have to reassert his
present claim in a properly filed civil complaint.2
1
That claim is not before this Court and we therefore have
no opinion on its merits. However, it would appear doubtful.
See, e.g., Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum
v. Fano, 427 U.S. 215, 224–25 (1976); Montanye v. Haymes, 427
U.S. 236, 242 (1976) (“As 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.”); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)
(noting that prison classification and eligibility for
rehabilitative programs in the federal prison system are matters
delegated by Congress to the “full discretion” of federal prison
officials, citing 18 U.S.C. § 4081, and thus implicate “no
legitimate statutory or constitutional entitlement sufficient to
invoke due process”); Wesson v. Atlantic County Jail Facility,
2008 WL 5062028, *6 (D.N.J. Nov. 26, 2008) (it is wellestablished that an inmate has no liberty interest in a
particular custody level or place of confinement). See also
Marti v. Nash, 227 Fed. Appx. 148, 150 (3d Cir. 2007) (inmate has
no due process right to any particular security classification
and, therefore, could not challenge his public safety factor of
“greatest severity”, which prevented his placement in a minimum
security facility).
2
The Court notes that, should Petitioner decide to file a
civil complaint in this District Court, he must either pay the
$350.00 filing fee or submit a complete in forma pauperis (“IFP”)
application with a certified six-month prison account statement,
pursuant to 28 U.S.C. § 1915(a)(2).
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CONCLUSION
Based on the foregoing, this petition for a writ of habeas
corpus, filed pursuant to 28 U.S.C. § 2241, is hereby dismissed
for lack of subject matter jurisdiction.
An appropriate Order accompanies this Opinion.
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: November 30, 2012
At Camden, New Jersey
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