United States District Court, W.D. Pennsylvania
Pupo Lenihan Magistrate Judge
before the Court is a Petition for Writ of Habeas Corpus
filed by Petitioner Ivan Valeriyevich Zakharenko
(“Petitioner”) pursuant to 28 U.S.C. § 2241.
(ECF No. 1.) For the following reasons, the Petition will be
22, 2015, Petitioner was convicted in the United States
District Court for the Western District of Michigan after
pleading guilty to manufacturing 100 or more marijuana plants
(count 1) and with possession with intent to distribute
cocaine (count 2). (ECF No. 8-10.) He was sentenced to a term
of imprisonment of sixty (60) months at count 1 and thirty
(30) months at count 2, to be served concurrently.
Id. As part of the Judgment, the court recommended
to the Bureau of Prisons, inter alia, that
Petitioner be evaluated for substance abuse and mental health
counseling and provided treatment, if necessary. Id.
August 26, 2015, while Petitioner was incarcerated at the
Metropolitan Detention Center in Brooklyn, New York, the
Department of Homeland Security (“DHS”) issued an
Immigration Detainer against Petitioner specifying that he is
an immigration enforcement priority based upon his conviction
for an aggravated felony, and finding probable cause that he
is a removable alien. (ECF No. 8-11.)
subsequently was designated to serve his sentence at the
Moshannon Valley Correctional Center (“MVCC”) in
Philipsburg, Pennsylvania,  (ECF No. 8-3), and on September
15, 2015, an Immigration Detainer was lodged against him
requesting that U.S. Immigration and Customs Enforcement
(“ICE”) be notified prior to his release so that
DHS can assume custody, (ECF No. 8-12). Petitioner was given
a Public Safety Factor (“PSF”) Code H for
Deportable Alien, (ECF No. 8-5), and thus required to be
housed in at least a Low security level institution, (ECF No.
August 9, 2016, Petitioner filed his Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 alleging that
his Immigration Detainer renders him ineligible for substance
abuse and mental health treatment programs while
incarcerated, and will preclude him from home detention or
release to a half-way house at the appropriate time, all in
violation of his constitutional rights to due process and
equal protection of the laws.
Petitioner's claim challenges the execution of his
sentence, rather than the validity of it, he has properly
raised it in a § 2241 petition. SeeCoady v.
Vaughn, 251 F.3d 480, 485 (3d Cir.2001). Nonetheless,
his claims lack merit.
is required to “make available appropriate substance
abuse treatment for each prisoner the Bureau determines has a
treatable condition of substance addiction or abuse.”
18 U.S.C. § 3621(b). As an incentive for prisoners to
successfully complete the program, “[t]he period a
prisoner convicted of a nonviolent offense remains in custody
after successfully completing a treatment program may be
reduced by the Bureau of Prisons, but such reduction may not
be more than one year from the term the prisoner may
otherwise serve.” 18 U.S.C. § 3621(e)(2)(B).
Pursuant to these statutory sections, and in an exercise of
the discretion vested in the Director of the BOP, the Bureau
has categorically excluded from early release several groups
of inmates who would otherwise be eligible under the statute.
Prisoners who have ICE detainers filed against them are only
one group. See28 C.F.R. § 550.55 (listing
inmates not eligible for early release). The Third Circuit
Court of Appeals has found “no basis to question the
regulation providing for the categorical exclusion of certain
inmates [from early release] . . . as a legitimate exercise
of the BOP's discretion” including prisoners
subject to removal detainers. Adeyeye v. Department of
Homeland Sec., 198 F. App'x 196, 197 (3d Cir. 2006)
(citing United States v. Lopez-Salas, 266 F.3d 842,
847-48 (8th Cir. 2001)).
courts have consistently recognized that the exclusion of
prisoners subject to ICE detainers from participating in BOP
rehabilitative programs and receiving early release and home
detention benefits does not violate the Equal Protection
Clause. BOP Regulations providing for such
programs and benefits classify prisoners as those who are
subject to custodial considerations (including those who have
ICE detainers lodged against them) and those who are not, not
on the basis of alienage. SeeMcLean v. Crabtree, 173
F.3d 1176, 1185-86 (9th Cir. 1999). See also, BOP
P.S. 7310.04, pp.10-11 (listing inmates not ordinarily
eligible for halfway house placement); BOP P.S. 7320.01, p.7
(listing inmates not ordinarily eligible for home
reviewing an equal protection challenge to the BOP's
classification of prisoners, rational-basis review is
appropriate because the classification of prisoners by their
eligibility to participate in programs implicates neither a
fundamental right nor a suspect class. Rublee v.
Fleming, 160 F.3d 213, 217 (5th Cir. 1998). The Equal
Protection Clause requires only that the classification
rationally further a legitimate state interest.
SeeNordlinger v. Hahn, 505 U.S. 1, 10 (1992).
rational-basis review, excluding prisoners subject to
detainers or other custodial considerations from
participating in programs involving custody issues, such as
early release, is rationally related to the BOP's
legitimate interest in preventing such prisoners from
fleeing. See e.g., McLean, 173 F.3d at
1185-86 (“Excluding prisoners with detainers from
participating in the community-based treatment programs, and
consequently from sentence reduction eligibility, is at least
rationally related to the BOP's legitimate interest in
preventing prisoners from fleeing detainers while
participating in community treatment programs.”);
Gallegos-Hernandez v. U.S., 688 F.3d 190, 195-96
(5th Cir. 2012) (exclusion of prisoners with ICE detainers
from rehabilitative programs, or from halfway house
placement, did not violate the equal protection clause, since
alien prisoners, as an identifiable group, were not treated
differently from other similarly situated prisoners who were
not aliens). Cf. Franco v. Bureau of Prisons, 207 F.
App'x 145 (3d Cir.2006) (affirming, on rational basis
review, District Court's rejection of equal-protection
challenge to Bureau's prison transfer policy, which
distinguishes between prisoners who are subject to
immigration detainers and other custodial considerations and
those who are not). Moreover, the purpose of rehabilitative
programs, such as those involving substance abuse and mental
health treatment, is to reduce the likelihood of recidivism
and drug abuse relapse and to reintegrate into society
inmates who are less likely to experience the critical
post-release outcomes of new arrests and substance abuse.
Since inmates with ICE detainers will be turned over for
deportation after their release, limiting the program to
those without detainers is a legitimate government interest.
Accordingly, Petitioner's ICE detainer, and the program
limits it triggers, does not violate the Equal Protection
no due process violation has occurred because Petitioner does
not have a 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 ...