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Patrick R. Bennett v. Warden Robert Werlinger

March 3, 2011

PATRICK R. BENNETT, PETITIONER,
v.
WARDEN ROBERT WERLINGER, RESPONDENT.



The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan

District Judge Kim R. Gibson

MEMORANDUM OPINION AND ORDER

Petitioner, Patrick R. Bennett, is a federal prisoner who has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, in which he alleges that his request for a transfer to the United States Penitentiary (USP) Canaan, Pennsylvania, which is closer to his release residence and family, was denied pursuant to an unlawful and/or invalid Program Statement. For the reasons set forth below, the Petition should be dismissed as this Court is without subject matter jurisdiction to review his claims in this action.

A. Undisputed Relevant Factual and Procedural History The record evidence, which Petitioner does not dispute, reflects the following facts. On June 23, 2000, Petitioner was sentenced in the United States District Court for the Southern District of New York to a 22 year term of imprisonment followed by a three year term of supervised release. The sentencing court recommended that Petitioner be incarcerated at a facility in the New York or Connecticut area. On July 25, 2000, Petitioner was designated to FCI Otisville, New York. On June 21, 2004, he was approved for a lesser security transfer from FCI Otisville to FCI Loretto. On July 29, 2004, he was transferred to FCI Loretto. On September 24, 2009, he was approved for a lesser security transfer from FCI Loretto to the satellite prison camp at FCI Loretto. On September 25, 2009, he was designated to the satellite prison camp at FCI Loretto. On January 5, 2010, Petitioner's request for a nearer-release transfer (Code 313) was denied by the BOP Designations and Sentence Computation Center (DSCC). On or after April 12, 2010, Petitioner submitted an Informal Resolution form to his Unit Team in which he challenged the DSCC's denial of his request for a transfer to the satellite prison camp at the USP Canaan, Pennsylvania. He complained that the decision of the DSCC was arbitrary and capricious and an abuse of discretion. In a handwritten response dated April 30, 2010, Petitioner's Unit Team advised him that the DSCC denied his request pursuant to Program Statement 5100.08, Chapter 7, page 4, because he was incarcerated at an institution within 500 miles of his release residence.

On May 4, 2010, Petitioner filed a Request for Administrative Remedy No. 588441-F1 with the Warden at FCI Loretto, in which he requested a nearer release transfer. On May 18, 2010, Petitioner withdrew his Request for Administrative Remedy Request stating that the issue raised had been resolved. According to Petitioner's Unit Team at FCI Loretto, he agreed to withdraw his Request for Administrative Remedy in exchange for his Unit Team's agreement to re-submit his transfer request to the DSCC. On June 22, 2010, the DSCC denied Petitioner's request for a nearer release transfer noting that he currently was incarcerated at an institution that was less than 500 miles from his release residence.

B. Habeas Corpus Jurisdiction

Petitioner's allegation does not assert a habeas challenge and, hence, cannot be entertained in this matter. The Court of Appeals for the Third Circuit explained the distinction between the availability of civil rights relief and the availability of habeas relief as follows:

[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, however denominated and regardless of the relief sought, 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, an action under § 1983 is appropriate.

Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir.2002). Therefore, a prisoner is entitled to a writ of habeas corpus only if he "seek[s] to invalidate the duration of [his] confinement-either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the [government's] custody." See Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). In contrast, if a judgment in the prisoner's favor would not affect the fact or duration of the prisoner's incarceration, habeas relief is unavailable and a civil complaint is the appropriate form of remedy. See, e.g., Ganim v. Federal Bureau of Prisons, 235 Fed. App'x 882 (3d Cir. 2007) (holding that district court lacks jurisdiction under § 2241 to entertain prisoner's challenge to his transfer between federal prisons); Burnam v. Marberry, 313 Fed. App'x 455, 456, n.2 (3d Cir. 2009) (noting that a federal prisoner's challenge to a security classification does not fall within the jurisdictional ambit of 2241); Bronson v. Demming, 56 Fed. App'x 551, 553-54 (3d Cir. 2002) (holding that habeas relief was unavailable to inmate seeking release from disciplinary segregation to general population, and district court properly dismissed habeas petition without prejudice to any right to assert claims in properly filed civil rights complaint).

In Ganim v. Federal Bureau of Prisons, 235 Fed. App'x 882, the Court of Appeals for the Third Circuit addressed challenges virtually identical to those raised by Petitioner in this action. In Ganim, the petitioner requested to be transferred to a suitable FCI camp, which was closer to his home. In support of his application, the petitioner attached letters from his spouse and various other relatives asserting that traveling to his place of confinement burdened their lifestyles and budget. After his request was denied due to his release residence being within 500 miles, Ganim challenged the decision in a petition pursuant to 28 U.S.C. § 2241. In his petition, Ganim argued that: 1) the 500 mile rule that the prison official relied on did not apply to transfers between institutions of the same security level for closer-to-home purposes; 2) the 500 mile rule was an invalid "blanket rule" because it does not allow the Bureau of Prisons ("BOP") to consider an inmate's particular circumstances and the factors explicitly stated in 18 U.S.C. § 3621(b); and 3) the BOP must comply with its own program statement and Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005), and consider the sentencing judge's recommendation, and the history and characteristics of the prisoner, when evaluating a request for a transfer. He also raised a due process claim by alleging a protected liberty interest in the proper application of the BOP's rules and regulations. The District Court denied Ganim's petition concluding that Ganim had not exhausted his administrative remedies, and alternatively determined that Ganim's claims were without merit. See Ganim v. Fed. Bureau of Prisons, Civil No. 06-2957, 2006 WL 2224348 (D.N.J. July 31, 2006). Ganim appealed this determination.

In its review, the Court of Appeals for the Third Circuit determined that the district court erred by dismissing the petition on the merits. In so concluding, the Court of Appeals observed as follows.

We must first determine if Ganim could proceed under 28 U.S.C. § 2241. The language of § 2241, as well as the common-law history of the writ of habeas corpus, define the essential purpose of the writ-to allow a person in custody to attack the legality of that custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). However, a federal prisoner may challenge the execution of his sentence in a petition pursuant to § 2241. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). "[T]he precise meaning of 'execution of a sentence' [remains] hazy." Woodall, 432 F.3d at 242. In Woodall, considering rulings from the Courts of Appeals of the Second, Sixth, Ninth, and Tenth Circuits, and the plain meaning of the term "execution" (to put into effect or carry out), we allowed a § 2241 challenge to regulations that limited a prisoner's placement in a community correction center (CCC). See id. at 243. We noted that "[c]arrying out a sentence through detention in a CCC is very different from carrying out a sentence in an ordinary penal institution." Id. Specifically, in finding Woodall's action properly brought pursuant to § 2241, we determined that "placement in a CCC represents more than a simple transfer." Id. We stated that "Woodall's petition crosse[d] the line beyond a challenge to, for example, a garden variety prison transfer." Id.

Ganim who challenges a decision not to transfer him from federal prison in New Jersey to a similar facility in New York, does not cross the line that Woodall crossed. Ganim presents a challenge to a decision relating to a simple or garden variety transfer. The cases we cited approvingly in Woodall were not challenges to routine transfers.. . .. . .

We find further support for our distinction of Ganim's case from Woodall's in Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999). In Pischke, the court held that "habeas corpus cannot be used to challenge a transfer between prisons ... unless the custody in which the transferred prisoner will find himself when transferred is so much more restrictive than his former custody that the transfer can fairly be said to have brought about ... 'a quantum change in the level of custody.' " Id. (citations omitted). While we did not look for a quantum change in Woodall, in that case, we noted many distinctions between a traditional correctional facility and a CCC when we considered the two types of confinement. See 432 F.3d at 243 (noting that at CCCs, unlike in prison, inmates may be eligible for short-term releases for daily work in the ...


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