GONZALEZ-LORA v. HOLLINGSWORTH
Filing
6
OPINION. Signed by Judge Noel L. Hillman on 11/26/2013. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILFREDO GONZALEZ-LORA,
Petitioner,
v.
JORDAN HOLLINGSWORTH,
Warden,
Respondent.
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Civil Action No. 13-1961(NLH)
OPINION
APPEARANCES:
Wilfredo Gonzalez-Lora
Moshanno Valley Correctional Institution
555 GEO Drive
Philipsburg, PA 16866
Petitioner pro se
HILLMAN, District Judge
Petitioner Wilfredo Gonzalez-Lora, 1 a prisoner currently
1
Under the name “Wilfredo Gonzalez Lora,” Petitioner was
convicted in 1999, in the U.S. District Court for the Eastern
District of Virginia, of conspiracy to distribute and possession
with intent to distribute cocaine and heroin, in violation of 21
U.S.C. § 846, and was sentenced to a term of imprisonment of 292
months, pursuant to which he is presently confined. See United
States v. Lora, Crim. No. 98-0358 (E.D. Va.). See also U.S. v.
Lora, 26 F.App’x 149 (4th Cir. 2001), cert. denied, 535 U.S.
1087 (2002).
confined at Moshanno Valley Correctional Institution at
Philipsburg, Pennsylvania, 2 has submitted a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. 3
The sole
respondent is Warden Jordan Hollingsworth.
Because it appears from a review of the Petition that
Petitioner is not entitled to relief, the Petition will be
dismissed.
See 28 U.S.C. § 2243.
I.
BACKGROUND
Petitioner states that, in 1984, he entered the United
States legally as a permanent resident alien, after which he
This Court’s review of the U.S. Courts’ Public Access to
Court Electronic Records (“PACER”) system reveals that
Petitioner is a frequent litigator in the federal court system
under the names “Wilfredo Gonzalez Lora” and “Wilfred G. Lora”
as well as under the name used here, “Wilfredo Gonzalez-Lora.”
Accordingly, the Court will direct the Clerk of the Court to
amend the Docket to reflect these other spellings of
Petitioner’s name.
2
At the time he submitted this Petition, Petitioner was confined
at the Federal Correctional Institution at Fort Dix, New Jersey,
and Jordan Hollingsworth was then the Warden of that facility.
Petitioner has since been transferred to the Moshanno Valley
Correctional Institution.
3
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 ... .
2
applied for citizenship, in a process that was never completed,
for various reasons not relevant here.
at 3 et seq.)
(Memorandum of Law [1],
Petitioner states that an Immigration Judge in
Philadelphia ordered him removed to the Dominican Republic on
May 23, 2000, while his criminal appeals were pending.
(Memorandum of Law at 7.)
Petitioner appealed to the Board of
Immigration Appeals, which dismissed the appeal.
In 2008, the
Court of Appeals for the Third Circuit denied Petitioner’s
petition for review of the removal order finding, among other
things, that his citizenship claim was “without merit.”
See
Gonzalez-Lora v. Attorney General of the U.S., 314 F.App’x 447,
449 (3d Cir. 2008).
In 2012, the Court of Appeals denied a
petition for review of the BIA’s refusal to re-open Petitioner’s
removal proceedings.
See Gonzalez-Lora v. Attorney General of
the U.S., 468 F.App’x 178 (3d Cir. 2012).
Here, Petitioner asserts that the Bureau of Prisons (the
“BOP”), at the request of immigration officials and on the basis
of the allegedly void order of removal, has placed a “detainer” 4
4
An immigration detainer:
serves to advise another law enforcement agency that
the Department [of Homeland Security, Bureau of
Immigration and Customs Enforcement] seeks custody of
an alien presently in the custody of that agency, for
the purpose of arresting and removing the alien. The
detainer is a request that such agency advise the
Department, prior to release of the alien, in order
for the Department to arrange to assume custody, in
3
on Petitioner.
Petitioner asks this Court to nullify the
allegedly void order of removal and to “vacate” the detainer,
both of which he contends are causing him difficulties.
For
example, Petitioner contends that the detainer is affecting his
ability to participate in various BOP programs, including
halfway house programs and apprenticeship programs (such as a
landscaping program). 5
He also complains that the allegedly void
order of removal precludes him from using the Freedom of
Information Act and the Privacy Act to obtain information
related to his immigration and criminal proceedings.
In addition, Petitioner has filed a Motion [3] for an order
compelling his return to the Federal Correctional Institution at
Fort Dix, to participate in this litigation and because the new
facility is “just a ‘enhanced’ county Jail, where a sentence of
ten year here will amount to a violation of the eighth
Amendment, and also violate the criminal judgment and commitment
as there is not rehabilitation here.”
(Motion, at 4.)
Finally,
Petitioner has filed a Motion [5] to expedite this proceeding.
situations when gaining immediate physical custody is
either impracticable or impossible.
8 C.F.R. § 287.7(a).
5
Petitioner asserts that he has approximately eight years left
to serve on his sentence.
4
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 Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (citing
United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555
(3d Cir. 1969)); Royce v. Hahn, 151 F.3d 116, 118 (3d Cir.
1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir.
1989).
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); McFarland v. Scott,
512 U.S. 849, 856 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d
Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
U.S.C. §§ 2243, 2255.
5
See also 28
III.
A.
ANALYSIS
The Challenge to the Order of Removal
Petitioner asserts that the Order of Removal is invalid for
a number of reasons.
Pursuant to the REAL ID Act of 2005,
however, district courts no longer have jurisdiction to
entertain § 2241 habeas petitions challenging final orders of
removal.
Instead, such challenges now must be asserted through
a petition for review filed in the appropriate U.S. Court of
Appeals.
See 8 U.S.C. § 1252(a), (b).
Accordingly, this Court
lacks jurisdiction to consider this claim.
Pursuant to 28 U.S.C. § 1631,
Whenever a civil action is filed in a court ... and
that court finds that there is a want of jurisdiction,
the court shall, if it is in the interest of justice,
transfer such action or appeal to any other such court
in which the action or appeal could have been brought
at the time it was filed or noticed, and the action or
appeal shall proceed as if it had been filed in or
noticed for the court to which it is transferred on
the date upon which it was actually filed in or
noticed for the court from which it is transferred.
This Court finds that it would not be in the interest of
justice to construe this claim as a new petition for review of
the removal order and to transfer it to the Court of Appeals for
the Third Circuit, as that Court has twice denied petitions for
review of this same removal order, including on grounds reasserted by Petitioner here.
6
B.
The Challenge to the Detainer
The incidental effect of the immigration detainer on
Petitioner’s eligibility for certain prison programming does not
violate any constitutional right to due process or equal
protection.
A liberty interest protected by the Due Process Clause may
arise from either of two sources:
or enacted 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).
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, 459 U.S. at
468 and Sandin v. Conner, 515 U.S. 472, 480 (1995).
See also
Bacon v. Minner, 229 F.App’x 96, 98 (3d Cir. 2007) (citing
Asquith, Hewitt, and Sandin).
Cf. Washington v. Harper, 494
U.S. 210, 221-22 (1990) (holding that prisoner possesses liberty
interest under the Due Process Clause in freedom from
involuntary administration of psychotropic drugs); Vitek v.
Jones, 445 U.S. 480, 493-94 (1980) (holding that prisoner
possesses liberty interest under the Due Process Clause in
7
freedom from involuntary transfer to state mental hospital
coupled with mandatory treatment for mental illness, a
punishment carrying “stigmatizing consequences” and
“qualitatively different” from punishment characteristically
suffered by one convicted of a crime).
Governments, however, 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).
Petitioner does not allege either that some statute confers a
liberty interest in being free from the constraints imposed
against prisoners subject to an immigration detainer or that the
program limitations under which he is confined present “atypical
and significant hardships.”
Thus, Petitioner cannot establish
any deprivation of his liberty interests under the Due Process
Clause.
8
This issue has been litigated frequently with respect to
federal prisoners.
For example, the regulation limiting
participation in the substance-abuse early release program
established in 18 U.S.C. § 3621(b) has withstood challenge by
persons subject to immigration detainers.
United States Code
Title 18 Section 3621(b) requires the Bureau of Prisons to “make
available appropriate substance abuse treatment for each
prisoner the Bureau determines has a treatable condition of
substance addiction or abuse.”
18 U.S.C. § 3621(b).
As an
incentive for prisoners to successfully complete the program,
“[t]he period a prisoner convicted of a nonviolent offense
remains in custody after successfully completing a treatment
program may be reduced by the Bureau of Prisons, but such
reduction may not be more than one year from the term the
prisoner must otherwise serve.”
18 U.S.C. § 3621(e)(2)(B).
Pursuant to these statutory sections, and in an exercise of the
discretion vested in the Director of the Federal Bureau of
Prisons, the Bureau has promulgated regulations prescribing
certain additional early release criteria, inter alia excluding
from consideration for early release prisoners who are subject
to an immigration detainer.
28 C.F.R. § 550.58(a)(1)(I).
This
is analogous to the type of program limitation that Petitioner
mentions.
9
In Lopez v. Davis, 531 U.S. 230 (2001), the Supreme Court
held that it was a proper exercise of discretion by the Bureau
of Prisons to categorically deny eligibility for early release
to prisoners with “a prior felony or misdemeanor conviction for
homicide, forcible rape, robbery, or aggravated assault, or
child sexual abuse offenses,” 28 C.F.R. § 550.58(a)(1)(iv), or
to prisoners whose current offense is one of certain enumerated
felonies involving the use or attempted use of force, or
involving the carrying, possession, or use of a firearm or other
dangerous weapon, or involving sexual abuse upon children, 28
U.S.C. § 550.58(a)(1)(vi).
In reaching this conclusion, the
Court first noted that the language of § 3621(e)(2)(B) grants
the Bureau discretion to reduce a prisoner’s sentence for
successful completion of a substance abuse treatment program,
but fails to define any parameters by which the Bureau should
exercise that discretion.
In this familiar situation, where Congress has enacted
a law that does not answer “the precise question at
issue,” all we must decide is whether the Bureau, the
agency empowered to administer the early release
program, has filled the statutory gap “in a way that
is reasonable in light of the legislature’s revealed
design.” We think the agency’s interpretation is
reasonable both in taking account of preconviction
conduct and in making categorical exclusions.
Lopez, 531 U.S. at 242 (citing, inter alia, Chevron, U.S.A.,
Inc. v. National Resources Defense Council, Inc., 467 U.S. 837,
842 (1984))(other citations omitted).
10
Thus, “the statute’s
restriction of early release eligibility to nonviolent offenders
does not cut short the considerations that may guide the
Bureau.”
Lopez, 531 U.S. at 242.
See also Magnin v. Beeler,
110 F.Supp.2d 338 (D.N.J. 2000) (upholding 28 C.F.R.
§550.58(a)(1)(vi), before Lopez, as a valid exercise of the
Bureau’s discretion).
The Court of Appeals for the Eighth Circuit has stated that
it sees no difference between the categorical exclusion examined
by the Supreme Court in Lopez v. Davis and the categorical
exclusion of prisoners subject to an immigration detainer in 28
C.F.R. § 550.58(a)(1)(I), holding that the latter is also within
the Bureau’s discretion.
842, 848 (8th Cir. 2001).
United States v. Lopez-Salas, 266 F.3d
See also Adeyeye v. Dept. of Homeland
Security, 198 F.App’x 196 (3d Cir. 2006) (also finding, in a
non-precedential decision, that the exclusion is a legitimate
exercise of the Bureau’s discretion).
Here, the programs mentioned by Petitioner, including those
involving halfway houses or off-site apprenticeship programs,
are ones in which “custody” is a consideration, similar to the
early release program, and Petitioner has not suggested any
reason why it is unreasonable for the prison authorities to take
into account an immigration detainer in determining eligibility
for such programs.
This Court finds that the existence of an
immigration detainer is a legitimate factor to consider in
11
determining eligibility for custody-related programming.
See
Phuong Thanh Nguyen v. Kirby, Civil No. 10-4525, 2010 WL 3862368
(D.N.J. Sept. 24, 2010).
Finally, the exclusion of persons subject to an immigration
detainer does not violate the Equal Protection Clause.
Program
limitations such as those challenged here classify prisoners as
those who are subject to custodial considerations (including
those who have detainers lodged against them) and those who are
not, not on the basis of alienage.
See McLean v. Crabtree, 173
F.3d 1176, 1185-86 (9th Cir. 1999), cert. denied, 528 U.S. 1086
(2000).
Accordingly, “the Equal Protection Clause requires only
that the classification rationally further a legitimate state
interest.”
See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
Excluding prisoners subject to detainers or other custodial
considerations from participation in programs involving custody
issues is rationally related to prison authorities’ legitimate
interest in preventing such prisoners from fleeing.
See McLean
v. Crabtree, 173 F.3d at 1185-86; Green v. Apker, 153 F.App’x
77, 79-80 (3d Cir. 2005) (citing McLean v. Crabtree).
Cf.
Franco v. Bureau of Prisons, 207 F.App’x 145 (3d Cir. 2006)
(affirming, on rational basis review, District Court’s rejection
of equal-protection challenge to Bureau’s prison transfer
policy, which distinguishes between prisoners who are subject to
immigration detainers and other custodial considerations and
12
those who are not).
Accordingly, the detainer, and the program
limits it triggers, do not violate the Equal Protection Clause.
C.
The Motion for Return to this Jurisdiction
Plaintiff asks this Court to order him returned to this
jurisdiction, to participate in this litigation and because he
finds the conditions at Moshanno Valley Correctional Institution
unsatisfactory.
A habeas corpus petition is the proper mechanism for a
federal 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).
544 U.S. 74 (2005).
See also Wilkinson v. Dotson,
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.
See also Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 237
(3d Cir. 2005) (finding that a challenge to regulations limiting
pre-release transfer to community corrections centers was
properly brought in habeas); Macia v. Williamson, 219 F.App’x
229, (3d Cir. 2007) (finding habeas jurisdiction in challenge to
13
disciplinary hearing that resulted in sanctions including loss
of good-time credits, disciplinary segregation, and disciplinary
transfer).
The Court of Appeals for the Third Circuit has held that
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) (noting that
federal prisoners may challenge the denial of parole under
§ 2241); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990)
(entertaining challenge to BOP refusal to consider prisoner’s
request that state prison be designated place for service of
federal sentence, in order that state and federal sentences
could run concurrently).
See also George v. Longley, 463
F.App’x 136 (3d Cir. 2012) (citing Coady and Barden).
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 decision is
not cognizable in habeas.
See Ganim v. Federal Bureau of
Prisons, 235 F.App’x 882 (3d Cir. 2007).
Accordingly, as in
Ganim, and insofar as Petitioner’s challenge is based upon his
personal disdain for the conditions at Moshanno Valley
Correctional Institution, this Court lacks habeas jurisdiction
to consider Petitioner’s challenge to his place of confinement.
14
In any event, however, to the extent this Court could
exercise jurisdiction over Petitioner’s claim, it is meritless.
See Castillo v. FBOP FCI Fort Dix, 221 F.App’x 172, 175, (3d
Cir. 2007) (considering viability of claims under civil rights,
injunctive relief, and mandamus theories after determining that
claims were not cognizable in habeas).
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).
As noted above, 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
15
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) (holding that 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), cited in Becerra v.
Miner, 248 F.App’x 368, 370 (3d Cir. 2007); Hewitt, 459 U.S. at
466-67; 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.
Accordingly, an inmate has no liberty interest in assignment to
an institution based on personal preference for the program
levels. 6
Finally, it is clear from this Court’s decision that
Petitioner’s presence in this District is not necessary to
resolution of this matter.
6
To the extent Petitioner contends that his present conditions
of confinement violate the Eighth Amendment, his proper course
of action would be to pursue a civil action in the district
where the correctional facility is located.
16
IV.
CONCLUSION
For the reasons set forth above, the challenge to the
detainer is denied and the challenge to the order of removal and
to the transfer will be dismissed for lack of jurisdiction.
The
Motion to expedite will be dismissed as moot.
An appropriate order follows.
At Camden, New Jersey
s/ Noel L. Hillman
Noel L. Hillman
United States District Judge
Dated: November 26, 2013
17
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