ROSARIO v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al
OPINION filed. Signed by Judge Peter G. Sheridan on 1/12/2017. (mps)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-9227 (PGS)
NEW JERSEY DEPARTMENT OF
CORRECTIONS, et al.,
This matter comes before the Court on a Petition for Writ of Habeas Corpus filed
pursuant to 28 U.S.C.
2241 by Petitioner Anthony Rosario.
The Court has screened the
Petition for summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in
the United States District Courts, applicable to
2241 cases through Rule 1(b). It appearing;
1. Petitioner’s primary habeas challenge concerns the length of time to adjudicate a prison
See ECF No. I at 7.
Petitioner admits that he is a convicted prisoner
serving a valid sentence. Id. at 1. Petitioner alleges that he was previously incarcerated at the
Albert Bo Robinson Assessment Center (“Bo Robinson”), a halfway house, prior to the
disciplinary charge, but was transferred to the Central Reception and Assignment Facility
(“CRAF”) while awaiting resolution of his disciplinary charge, which, at the time the Petition
was filed, had exceeded four months. Id. at 7. This delay, Petitioner asserts, violates the New
Jersey Administrative Code, and his constitutional due process rights. Id. at 7-8. Petitioner
seeks to have this Court transfer him back to Bo Robinson. Id. at 8.
2. However, federal habeas relief lies only upon challenges to the fact or duration of a
petitioner’s confinement, and when the relief he seeks is immediate or speedier release from
imprisonment. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Petitioner does not seek release
from imprisonment, nor can he, because he is a convicted prisoner serving a valid sentence.
Rather, what he seeks is a transfer from CRAF to Bo Robinson, presumably because Bo
Robinson is a less restrictive facility where Petitioner would be entitled to more privileges. The
Third Circuit has already ruled that, under similar circumstances, there is no cognizable habeas
claim. See Levi v. Holt, 193 F. App’x 172, 175 (3d Cir. 2006) (“Levi’s transfer to the Special
Housing Unit and the loss of various privileges do not invoke the same due process protections.
Additionally, these punishments cannot be challenged under
2241 because in no manner do
they affect the fact or length of his sentence or confinement.”). Instead, the appropriate remedy
is a civil rights action. See Freiser, 411 U.S. at 494 (stating that if a plaintiff is “attacking
something other than the fact or length of his confinement, and he is seeking something other
than immediate or more speedy release
habeas corpus is not an appropriate or available
federal remedy,” and the attack should “be brought under the Civil Rights Act in federal court.”);
Levi, 193 F. App’x at 174 n.2. As such, the Petition fails to state a claim upon which relief may
Peter G. Sheridan
United States District Judge
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