LAFOND v. HOLDER et al

Filing 18

MEMORANDUM OPINION & ORDER re 1 Petition for Writ of Habeas Corpus filed by federal inmate RAOUL LAFOND pursuant to 28 U.S.C. Section 2241 is DISMISSED. No certificate of appealability is needed. Signed by Chief Magistrate Judge Maureen P. Kelly on 10/27/2017. (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RAOUL LAFOND,

)
)
)
vs.
)
)
ERIC H. HOLDER, JR. Attorney General )
of the United States; CLIFTON THOMAS )
BARRETT U.S. Assistant Attorney for the )
Middle District, Greensboro, NC; JOSE
)
SANTANA Section Chief for U.S. Bureau )
of Prisons; MARK A. KIRBY Warden and )
Custodian of Federal Correctional
)
Institution, Loretto, PA,
)
Respondents. )
Petitioner,

Civil Action No. 15-28J
Chief Magistrate Judge Maureen P. Kelly

MEMORANDUM OPINION
At the time of filing the Petition, Raoul LaFond (“Petitioner”) was held in the
Moshannon Valley Corrections Center (“MVCC”) as a federal post-convicted prisoner.

By

means of the Petition, he seeks to challenge the effect of a detainer that was issued on July 8,
2003, by the federal immigration authorities, known at the time as the Immigration and
Naturalization Services (“INS”). ECF No. 1. Petitioner complains in the Petition that the
Respondents are utilizing the detainer to deny him privileges and take away his liberty, which
violates his constitutional rights because the detainer is twelve years old and the detainer expired
by its own terms 48 hours after issuance. See ECF No. 1 at 5 – 6. Petitioner asserts that the
Respondents utilize the detainer in order to put an “Inmate Hold” or “Management Variable” on
Petitioner which results in restrictions on him that other prisoners do not have to undergo. Id. at
3 (Petitioner asked Respondents to “quash or dismiss fifteen (15) year old expired forty-eight

(48) hour Detainer and its resulting ‘inmate hold’ or ‘Management Variable’ unconstitutionally
lodged against the Petitioner’s custody, risk, designation and camp placement classification.”).
I. PROCEDURAL HISTORY
On February 2, 2015, Petitioner filed the instant Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241, challenging the application of a Greater Security Management
Variable preventing him from camp placement. ECF No. 1. Respondents filed their Response,
ECF No. 5, to the Petition, arguing that the Court lacks jurisdiction because the issue Petitioner
raises is not the proper subject of a habeas petition; Petitioner’s immigration detainer was and
continues to be valid; the due process clause does not create an inherent liberty interest
guaranteeing Petitioner housing in a particular penal institution; and dismissal is appropriate
because Petitioner failed to exhaust his administrative remedies.
Subsequently, Petitioner submitted a Request to Take Judicial Notice, arguing that he is
an American citizen by virtue of his parents becoming naturalized citizens while he was residing
with them in Brooklyn, New York prior to his eighteenth birthday and impliedly, that the
immigration detainer was erroneously placed against him by the federal immigration authorities.
ECF No. 10. Petitioner attached to that Request to Take Notice, what purported to be the
Certificate of Naturalization of Petitioner’s mother which showed that she was naturalized on
October 30, 1980. Naturalization occurring on such a date would have occurred prior to
Petitioner’s eighteenth birthday, which, under 8 U.S.C. §1431(a) would have qualified Petitioner
for citizenship in his own right so long as his mother was in fact naturalized prior to Petitioner
turning eighteen.
The Court ordered Respondents to respond to Petitioner’s Request to Take Judicial
Notice. ECF No. 11. Following the Court’s order, Respondents contacted the Bureau of

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Immigration and Customs Enforcement (“ICE”), the successor agency to the INS, and requested
that it review Petitioner’s and/or his mother’s alien file (commonly known as an “A-File”). In
response, ICE informed Respondents that the copy of Petitioner’s mother’s naturalization
certificate that Petitioner submitted to the Court contained false information and ICE provided
Respondents with an authentic copy containing the correct information. Respondents provided a
copy of the mother’s Certificate of Naturalization accompanied by a certification of the copy by
the custodian of that record. Petitioner’s copy of the mother’s Certificate of Naturalization,
which was not accompanied by a certification of authenticity by the record’s custodian, showed a
date of October 30, 1980. Respondents’ certified copy shows a date of October 30, 1984, which
would mean that Petitioner’s mother was not naturalized until after Petitioner had already turned
twenty years of age, rendering him ineligible to qualify for citizenship under 8 U.S.C. §1431(a).
Petitioner filed a Reply to the Response where he asserts that his copy is a copy of the “original”
and that the Respondents’ copy is a duplicate, containing inaccurate information. ECF No. 16.
As such, this Court denied Petitioner’s request to take judicial notice. ECF No. 17.
All parties have consented to the plenary exercise of jurisdiction by the Magistrate Judge.
ECF Nos. 7 and 8.
II. DISCUSSION
A.

Petitioner Failed to Exhaust his Administrative Remedies.

Respondents point out that Petitioner failed to exhaust his administrative remedies as is
required prior to filing this Section 2241 habeas petition. ECF No. 5 at 3 - 5. Petitioner does not
contend that he did exhaust, but, rather, he contends that the “Administrative Remedies are
Constitutionally inadequate to address the federal question involved in granting habeas relief. . .
.” ECF No. 1 at 3.

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Respondents are correct that Petitioner is required to exhaust his administrative remedies
prior to bringing this Section 2241 habeas petition. Callwood v. Enos, 230 F.3d 627, 634 (3d
Cir. 2000) (“Although there is no statutory exhaustion requirement attached to § 2241, we have
consistently applied an exhaustion requirement to claims brought under § 2241.”). In this regard
we note that “[i]n contrast to civil rights actions and the Prison Litigation Reform Act, where
exhaustion is an affirmative defense, and non-exhaustion is to be proven by the defendants, Ray
v. Kertes, 285 F.3d 287 (3d Cir. 2002), in habeas petitions, exhaustion is a condition precedent to
filing with the consequent burden of proving exhaustion on the habeas petitioner.” Davis v. PA
Dept. of Corrections, CV 15-587, 2016 WL 7131565, at *3 (W.D. Pa. Dec. 6, 2016). This means
that it would be Petitioner’s burden to show why the administrative remedies provided by the
Bureau of Prison's (“BOP”) are constitutionally inadequate. In this case, Petitioner fails to do so
other than merely declaring the administrative remedies are inadequate. ECF No. 1 at 2 – 3. This
is insufficient to carry the requisite burden to show that the presumptively adequate remedies are
inadequate. See U.S. v. Levy, 897 F.2d 596, 598 (1st Cir. 1990) (“because he has not exhausted
the presumptively adequate administrative remedy available to him, his constitutional arguments
are premature.”).
Accordingly, the Petition is dismissed for failure to exhaust his administrative remedies.
B.

The Management Variable Claim is not Cognizable via Section 2241.

Petitioner’s challenge herein to the application of a Management Variable is simply not
cognizable via a Section 2241 Petition but must instead be brought by way of a Bivens action, as
Respondents correctly point out. Briley v. Atty. Gen. U.S., 632 Fed. Appx. 84 (3d Cir. 2016)
(“Jay Bonanza Briley, a federal inmate, filed a petition for a writ of habeas corpus under 28
U.S.C. § 2241 seeking to challenge the Bureau of Prison's (‘BOP’) determination that a Greater

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Security Management Variable should be applied to his custody classification.. . . We agree with
the District Court that Briley's challenge to his custody classification is not cognizable in a §
2241 petition because he does not challenge the basic fact or duration of his imprisonment,
which is the ‘essence of habeas.’”). Accordingly, the Management Variable claim does not
warrant federal habeas relief.
C. The Challenge to the Viability of the Detainer Lacks Merit.
Petitioner’s challenge to the continuing viability of the detainer against him is simply
unpersuasive for the reasons pointed out by the Respondents in the Response. ECF No. 5 at 8 –
11. The validity of the detainer did not lapse after 48 hours as Petitioner seemingly argues.
Hence, the detainer remains valid and enforceable. To the extent Petitioner argues that he is a
citizen, not properly subject to the immigration detainer, we have already implicitly rejected that
argument given that there is no competent evidence of record to support his claim of citizenship
as we determined in our order denying his Motion to Take Judicial Notice.
To the extent that he claims denial of a liberty interest without procedural due process
given that he was not provided notice and an opportunity to be heard prior to the imposition of
the ICE detainer or prior to the BOP classifying him and imposing a Management Variable on
him, we find that he was not entitled to any procedural due process because neither the
placement of a detainer, or its implications for Petitioner’s custody classification and resulting
ineligibility for camp placement implicates a liberty interest. See, e.g., Becerra v. Miner, 248 F.
Appx. 368, 370 (3d Cir. 2007) (inmate assigned public safety factor of “deportable alien” had no
liberty interest in his consequential disqualification for certain institutional programs);
Zakharenko v. U.S. Bureau of Prisons, CV 16-183J, 2017 WL 2559625, at *3 (W.D. Pa. June 13,
2017) (“Additionally, no due process violation has occurred because Petitioner does not have a

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liberty interest in the programs and benefits he claims he is being wrongly or unfairly denied. See
e.g., Gallegos, 688 F.3d at 195 (finding no liberty interest in drug-rehabilitation and other related
programs arising from 18 U.S.C. §§ 3621 and 3624 and therefore no due process violation in
denial of these benefits to inmate with ICE detainer).”). Neither does the imposition or the
effects of the detainer violate substantive due process. See, e.g., Carvajal v. Tombone, 31 F.
App’x 155, 155 (5th Cir. 2001) (“The BOP's classification of prisoners based on whether they
are INS detainees or citizens of the United States is not a suspect classification, and therefore, the
rational basis standard of review is applicable. The BOP's determination that INS detainees are
ineligible to participate in such programs is rationally related to the legitimate governmental
interest of preventing such INS detainees from fleeing during the community-based portion of
the above programs.”) (citation omitted).
Accordingly, the detainer nor its effects deny Petitioner either procedural or substantive
due process.
III. CONCLUSION
For the foregoing reasons, the Petition is DENIED. No certificate of appealability is
needed for federal prisoners whose Section 2241 petitions have been denied. Bruce v. Warden
Lewisburg USP, 868 F.3d 170, 177 (3d Cir. 2017) (“The requirements for obtaining a certificate
of appealability set forth in 28 U.S.C. § 2253(c) do not apply to prisoners appealing the denial of
a § 2241 petition.”).
BY THE COURT:
Date: October 27, 2017

s/Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE

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cc:

Raoul LaFond
18624-057
Loretto Federal Correctional Institution
Inmate Mail/Parcels
P.O. Box 1000
Loretto, PA 15940
All counsel of record via CM-ECF

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