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Lamont Bullock v. Jon D. Fisher

December 21, 2010

LAMONT BULLOCK, PETITIONER,
v.
JON D. FISHER, SUPERINTENDENT SCI-SMITHFIELD, RESPONDENT.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the court is the report and recommendation of Magistrate JudgeJ. Andrew Smyser, recommending that Lamont Bullock's petition for a writ of habeas corpus be dismissed.

Background

Mr. Bullock is a state prisoner proceeding pro se. He filed his petition for a writ of habeas corpus on June 1, 2010. He alleged that he was subject to disciplinary sentences and confinement in the disciplinary custody unit without adequate notice, a neutral tribunal, or the ability to be heard.

The respondent moved to dismiss. Magistrate Judge Smyser recommends that the motion be granted, because Mr. Bullock's claims "are not cognizable in a habeas corpus case."

Mr. Bullock objects to the report and recommendation and argues that his claims are appropriate for disposition with a writ of habeas corpus.

II. Discussion

A. Standard of Review

Where objections to the magistrate judge's report are filed, the court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir. 1984). In making its de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675--76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376--77 (M.D. Pa. 1998).

B. The Petitioner's Case is Not Appropriate for Habeas Corpus Review Mr. Bullock claims that a writ of habeas corpus is available because he claimed his liberty in prison has been subjected to greater restrictions without due process of law.

"By statute, a federal habeas court has jurisdiction over any claim that a prisoner is 'in custody in violation of the Constitution or laws' of the United States." Withrow v. Williams, 507 U.S. 680, 715 (citing 28 U.S.C. §§2241(c)(3), 2254(a), 2255). The Third Circuit has explained:

[W]henever the challenge ultimately attacks the 'core of habeas'-the validity of the continued conviction or the fact or length of the sentence-a challenge . . . 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, a [civil rights action] is appropriate.

Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). "Claims brought under a § 2241 petition must challenge the fact or duration of a sentence or confinement." Gilliam v. Holt, 188 F. App'x 79, 80 (internal citations omitted). Mr. Bullock's challenges to the disciplinary proceeding or his placement in a restricted housing unit do not implicate the fact or length of his sentence. Thus, they are not properly presented in a habeas petition.

Mr. Bullock also claims his petition should survive dismissal because he requested restoration of good-time credit. First, as Magistrate Judge Smyser rightly notes, "the petitioner does not contend that he lost good-time credits as a disciplinary sanction," but instead generally requests his credits be restored. A naked request to have good-time credits restored, without an allegation that they were removed in violation of the law, does ...


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