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Levi v. Ebbert

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


July 20, 2009

BERNARD S. LEVI, PETITIONER
v.
WARDEN DAVID EBBERT, RESPONDENT

The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

(Judge Rambo)

(Magistrate Judge Blewitt)

MEMORANDUM

Before the court is a report of the magistrate judge in which he recommends that Petitioner's petition for writ of habeas corpus be denied as to Petitioner's claims relating to conditions of confinement, his custody classification scoring, and his eligibility for a federal camp or a low security prison as these are not core habeas claims and are not cognizable in a habeas petition brought under 28 U.S.C. § 2241. The magistrate judge also recommended that Petitioner's claim of a due process violation regarding his public safety factor calculation be dismissed.

Petitioner has filed objections to the report and recommendation to which Respondent has filed a response and Petitioner filed a reply. The matter is ripe for disposition.

Petitioner insists that his claims do state a habeas action and cites Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005); Meachum v. Fano, 427 U.S. 215 (1976); Diaz v. Olsen, 110 F. Supp.2d 295 (D.N.J. 2000); and Nwanze v. Hahn, 97 F. Supp.2d 665 (W.D. Pa. 2000). These cases do not support Petitioner's claims.

Petitioner challenges the decision to retain him in a medium security facility rather than in a federal prison camp or low security facility. He does not seek the type of transfer contemplated by Woodall and Nwanze, i.e. a residential re-entry center or half-way house.

To the extent he now tries to do so in his objections to the report and recommendation, such an effort is improper pursuant to Middle District Local Rule 72.3. This was not a claim raised by Petitioner in his original petition nor addressed by the magistrate judge.

For the reasons set forth in the report and recommendation of Magistrate Judge Blewitt and in Respondent's brief in opposition to the objections to the report and recommendation, the petition will be dismissed. An appropriate order will be issued.

ORDER

AND NOW, this 20th day of July, 2009, in accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT:

1) The court adopts the report and recommendation of Magistrate Judge Blewitt.

2) Petitioner's claims relating to conditions of confinement, his custody classification scoring, and his eligibility for a federal camp or a low security prison are denied.

3) Petitioner's claim of a due process violation regarding his public safety factor calculation is dismissed.

4) The clerk of court shall close the file.

20090720

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