NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

VICTOR RODRIGUEZ-LEON, :

:

Petitioner, :

:

v. :

:

WARDEN DONNA ZICKEFOOSE, :

:

Respondent. :

:

Civ. Case No. 11-1172 (RBK)

O P I N I O N

APPEARANCES:

Victor Rodriguez-Leon, Pro Se

23299-069

FCI Fort Dix

P.O. Box 2000 West

Fort Dix, NJ 08640

Paul A. Blaine

Office of the U.S. Attorney

Camden Federal Bldg & U.S. Courthouse

401 Market Street

Camden, NJ 08101

Attorney for Respondent

KUGLER, District Judge

Petitioner, Victor Rodriguez-Leon, confined at the Federal

Correctional Institution, Fort Dix, has submitted this petition

for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241.

Respondent filed a Response to the petition, to which Petitioner

filed a reply. For the following reasons, the petition will be

denied.

Case 1:11-cv-01172-RBK Document 8 Filed 01/03/12 Page 1 of 8 PageID: 76
BACKGROUND

Petitioner was convicted in the United States District Court

for the District of Puerto Rico of possession with intent to

distribute narcotics, in violation of 21 U.S.C. § 841(a)(1). He

was sentenced on November 22, 2002 to serve a custodial term of

235 months, to be followed by eight years of supervised release.

His projected release date is November 3, 2018.

Petitioner argues in this petition that the Bureau of Prisons

(“BOP”) violated its own Program Statement (“PS”) 5100.08, and the

United States Constitution by classifying him as a greater

severity offender, and applying a Public Safety Factor (“PSF”) of

greatest severity, which has excludes him from eligibility to

transfer to a minimum custody facility.

Respondent asserts that the PSF was assigned to Petitioner

because the record of his criminal case establishes his role in a

drug organization as an enforcer; that he routinely carried,

possessed and used firearms; and engaged in violence to protect

his organization.

DISCUSSION

A. Standard of Review

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. See Estelle v. Gamble,

429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520

(1972). A pro se habeas petition and any supporting submissions

2

Case 1:11-cv-01172-RBK Document 8 Filed 01/03/12 Page 2 of 8 PageID: 77
must be construed liberally and with a measure of tolerance. See

Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney

General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.

Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S.

912 (1970).

B. Jurisdiction

A habeas corpus petition is the proper mechanism for a

federal prisoner to challenge the “fact or duration” of his

confinement, Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973),

including challenges to prison disciplinary proceedings that

affect the length of confinement, such as deprivation of good time

credits, Muhammad v. Close, 540 U.S. 749 (2004) and Edwards v.

Balisok, 520 U.S. 641 (1997). See also Wilkinson v. Dotson, 544

U.S. 74 (2005). In addition, where a prisoner seeks a “quantum

change” in the level of custody, for example, where a prisoner

claims to be entitled to probation or bond or parole, habeas is

the appropriate form of action. See, e.g., Graham v. Broglin, 922

F.2d 379 (7th Cir. 1991) and cases cited therein. See also Woodall

v. Federal Bureau of Prisons, 432 F.3d 235, 237 (3d Cir. 2005)

(challenge to regulations limiting pre-release transfer to

community corrections centers properly brought in habeas); Macia

v. Williamson, 2007 WL 748663 (3d Cir. 2007) (finding habeas

jurisdiction in challenge to disciplinary hearing that resulting

3

Case 1:11-cv-01172-RBK Document 8 Filed 01/03/12 Page 3 of 8 PageID: 78
in sanctions including loss of good-time credits, disciplinary

segregation, and disciplinary transfer).

The Court of Appeals for the Third Circuit has held that

habeas corpus is an appropriate mechanism, also, for a federal

prisoner to challenge the execution of his sentence. See Coady v.

Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001) (noting that federal

prisoners may challenge the denial of parole under § 2241); Barden

v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990) (challenge to BOP

refusal to consider prisoner's request that state prison be

designated place for service of federal sentence).

The Court of Appeals has noted, however, that “the precise

meaning of ‘execution of the sentence’ is hazy.” Woodall, 432

F.3d at 237. Distinguishing Woodall, the Court of Appeals has

held that a challenge to a garden-variety transfer is not

cognizable in habeas. See Ganim v. Federal Bureau of Prisons, 235

Fed. Appx. 882, 2007 WL 1539942 (3d Cir. 2007).

Here, however, Petitioner's argument is not a garden-variety

challenge to his classification and place of confinement, which

would not ordinarily be cognizable in habeas. Instead, he alleges

that the classification, itself, limits his eligibility for

consideration for early release, a challenge that goes to the

length of his confinement. Accordingly, this Court may exercise

jurisdiction in habeas to consider Petitioner's claim.

C. Petitioner's Classification and Place of Confinement

4

Case 1:11-cv-01172-RBK Document 8 Filed 01/03/12 Page 4 of 8 PageID: 79
With respect to convicted and sentenced prisoners, “[a]s long

as the conditions or degree of confinement to which the prisoner

is subjected is within the sentence imposed upon him and is not

otherwise violative of the Constitution, the Due Process Clause

does not in itself subject an inmate's treatment by prison

authorities to judicial oversight.” Montanye v. Haymes, 427 U.S.

236, 242 (1976), quoted in Hewitt v. Helms, 459 U.S. 460, 468

(1983), and Sandin v. Conner, 515 U.S. 472, 480 (1995).

Governments may confer on prisoners liberty interests that

are protected by the Due Process Clause. “But these interests

will be generally limited to freedom from restraint which, while

not exceeding the sentence in such an unexpected manner as to give

rise to protection by the Due Process Clause of its own force,

nonetheless imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.”

Sandin, 515 U.S. at 484 (finding that disciplinary segregation

conditions which effectively mirrored those of administrative

segregation and protective custody were not “atypical and

significant hardships” in which a state conceivably might create

liberty interest). See also Asquith v. Department of Corrections,

186 F.3d 407, 411-12 (3d Cir. 1999) (return to prison from halfway

house did not impose “atypical and significant hardship” on

prisoner and, thus, did not deprive him of protected liberty

interest).

5

Case 1:11-cv-01172-RBK Document 8 Filed 01/03/12 Page 5 of 8 PageID: 80
It is well-established that a prisoner possesses no liberty

interest arising from the Due Process Clause in a particular

custody level or place of confinement. See, e.g., Olim v.

Wakinekona, 461 U.S. 238, 245-46 (1983); Hewitt, 459 U.S. at

466-67; Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum v.

Fano, 427 U.S. 215, 224-25 (1976); Montanye, 427 U.S. at 242.

Thus, for example, there is no due process violation in assigning

prisoner a Sex Offender Public Safety Factor. See Day v. Nash,

191 Fed. Appx. 137, 2006 WL 2052335 (3d Cir. 2006).

Similarly, here, Petitioner has no liberty interest in

avoiding the assignment to him of a Greatest Severity Public

Safety Factor. Congress has delegated the authority to determine

a prisoner’s appropriate classification and place of confinement

to the BOP. See, e.g., 28 C.F.R. § 0.96; BOP Program Statement

5100.08, Inmate Security Designation and Custody Classification.

There are several factors that the BOP must consider in making its

classification and custody decision. Petitioner has not

established that the decisions to assign him a Greatest Severity

Public Safety Factor has subjected him to “atypical and

significant” hardship. Cf. Marti v. Nash, 2006 WL 840397, *3

(D.N.J. March 27, 2006), aff'd, 227 Fed. Appx. 148, 2007 WL

1072969 (3d Cir. 2007) (prisoner, whose assignment to PSF of

Greatest Severity prevented his placement at minimum security

6

Case 1:11-cv-01172-RBK Document 8 Filed 01/03/12 Page 6 of 8 PageID: 81
level facility, had no due process right to any particular

security classification).

To the extent the petition could be read as arguing that the

BOP's assignment to Petitioner of a Greatest Severity Public

Safety Factor is “arbitrary and capricious” in violation of § 706

of the Administrative Procedure Act, Congress has precluded

judicial review of such claims. See 18 U.S.C. § 3625; Murray v.

Bledsoe, 650 F.3d 246, 247 n.1 (3d Cir. 2011). See also Burnam v.

Marberry, 313 Fed. Appx. 455, 456, 2009 WL 449151, 1 (3d Cir.

2009); Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998).

1

Accordingly, Petitioner has failed to establish any due

process violation in the assignment to him of the Greatest

Severity Public Safety Factor or in the assignment to a low

security facility, to warrant habeas relief.

CONCLUSION

For the reasons set forth above, the petition must be denied.

An appropriate order follows.

In any event, there appears to be no abuse of discretion

1

here. Pursuant to P.S. 5100.08, Appendix A, Petitioner was properly

assigned the Greatest Severity Public Safety Factor because of his

offense behavior, including his use of firearms. (Ferretti

Declaration, ¶ 5). The PSF was not applied as a result of his role

as a leader of the drug organization. (Id.). Pursuant to P.S.

5100.08, Chapter 5, as an inmate with a Greatest Severity Public

Safety Factor, he was properly assigned to at least a low security

level institution.

7

Case 1:11-cv-01172-RBK Document 8 Filed 01/03/12 Page 7 of 8 PageID: 82
s/Robert B. Kugler

ROBERT B. KUGLER

United States District Judge

Dated: January 3, 2012

Dated:

8

Case 1:11-cv-01172-RBK Document 8 Filed 01/03/12 Page 8 of 8 PageID: 83