NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

CHARLES DOGAN, :

:

Petitioner, : Civil No. 11-3383 (JBS)

:

v. :

:

BUREAU OF PRISONS, : OPINION

:

Respondent. :

:

APPEARANCES:

CHARLES DOGAN, Petitioner pro se 

03287-088 

FCI Fort Dix

P.O. Box 2000 

Fort Dix, N.J. 08640 

PAUL J. FISHMAN, 

United States Attorney

By: Mark Christopher Orlowski, AUSA

Office of the U.S. Attorney

402 East State Street

Room 430 

Trenton, N.J. 08608 

 Attorney for Respondent

SIMANDLE, Chief Judge:

Petitioner Charles Dogan (“Petitioner”), currently confined

at F.C.I. Fort Dix in Fort Dix, New Jersey, filed a Petition for

a Writ of Habeas Corpus under 28 U.S.C. § 2241 seeking a transfer

to prison camp. For the reasons expressed below, the Court will

dismiss the petition without prejudice to the filing of a civil

action such as the kind authorized by Bivens v. Six Unknown Named

Case 1:11-cv-03383-JBS Document 8 Filed 02/03/12 Page 1 of 8 PageID: 78
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1

I. BACKGROUND

On April 8, 1997, Petitioner was sentenced to a term of 312

months for drug trafficking by the United States District Court

for the District of West Virginia. (Pet. 1, Docket Entry No. 1.)

On or about January 25, 2010, while he was serving his sentence

at FCI Fort Dix, Petitioner’s Unit Team, with the Warden’s

approval, requested that the Petitioner be granted a lesser

security transfer to a minimum security institution. (Resp’t’s

Answer 8, Docket Entry No. 6.) In accordance with Program

Statement 5100.08, the request was sent to the Bureau of Prison’s

Designation and Sentence Computation Center (“DSCC”). (Res’t’s

Answer, Ex. 2, Declaration of Vanessa Simmons (“Simmons Decl.”) ¶

3, Docket Entry No. 6-2.) On March 1, 2010, the DSCC denied the

transfer request and placed a Greater Security Management

Variable on Petitioner due to his violent criminal history. (Id.

 The filing fee for a habeas petition is $5.00. The filing 1

fee for a civil action under Bivens is $350.00. An inmate

seeking to file a civil action under Bivens must either prepay

the filing fee or apply for in forma pauperis status by

submitting an affidavit of poverty and a prison account statement

for the six-month period preceding the filing of the complaint. 

See 28 U.S.C. § 1915(a). Where an inmate is granted in forma

pauperis status, this Court is required to collect the fee by

ordering the warden to deduct, and forward to the Clerk of the

Court, monthly installment payments of 20% of the preceding

month's income credited to the prisoner's account each month the

amount in the account exceeds $10.00.

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at Attach. 2.) Specifically, Petitioner pled guilty to charges

of second degree murder in 1981 at the age of eighteen. (Simmons

Decl., Attach. 1, Transfer Request, Docket Entry No. 6-2.) 

On November 12, 2010, Petitioner filed an administrative

remedy with the Warden at Fort Dix challenging the DSCC’s

decision. (Res’t’s Answer, Declaration of Tara Moran (“Moran

Decl.”), Ex. 2, Administrative Remedy.) On November 30, 2010,

Warden Zickefoose denied Petitioner’s request. (Id.) Petitioner

appealed that decision to the Regional Office and on January 10,

2011, the appeal was denied. (Id.) Petitioner appealed the

decision to the Central Office and on March 9, 2011, that appeal

was also denied. (Id.) 

On June 13, 2011, Petitioner filed the instant habeas

petition. (Docket Entry No. 1.) He states the following: 

The Bureau of Prisons erred in failing to adhere to its

regulations/policies, The Bureau of Prisons failure to

place petitioner in a prison camp violates the United

States Constitution...Petitioner began serving his

sentence in Beckley, W.Va. amedium [sic] security level

institution, The Bureau of Prisons designates a point[s]

system in order for custody classification of prisoners. 

Currently petitioners points is [sic] consistent with

placement. The Warden who has direct contact and control

over the petitioner acknowledge a transfer to

camp...Petitioner submits that pursuant of code of

federal regulation [cfr]..524.74 the warden is the

clearance authority on [a]ll transfers. The DSCC use of

the prior history of violence over 30 years ago was

unreasonable, arbitrary and capricious...Petitioner

submits that there are many other inmates with similar

histories as discovery will show that are currently

placed in the camp thus it violates the equal protection

of the 5 and 14 Amendment of the United States th th

Constitution. The Bureau of Prisons must exercise its

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discretion with an even hand...This court should grant

the writ and order the Bureau of Prisons to remove the

management variable and place petitioner in the camp. 

(Pet. 1-3.) In the Answer, Respondent argues that the Court

lacks subject matter jurisdiction over Petitioner’s custody

classification challenge. Respondent further argues that to the

extent the Court construes the petition to allege a due process

violation, Petitioner does not have a protected interest in his

classification or place of confinement. Finally, Respondent

argues that Petitioner fails to state a claim for an equal

protection violation as he does not identify any other similarly

situated inmates and fails to allege that any disparate treatment

was intentional or without rational basis. (Answer 9-17.) 

Petitioner filed a reply, arguing that Respondent should be

required to provide a list of all inmates housed in minimum

security prisons with any history of violence and that the court

should order an evidentiary hearing. (Reply 1-2, Docket Entry No.

7.) 

II. DISCUSSION

A. Jurisdiction

Section 2241 provides in relevant part:

(c) The writ of habeas corpus shall not extend to a

prisoner unless-... He is in custody in violation

of the Constitution or laws or treaties of the

United States.

28 U.S.C. § 2241(c)(3).

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To invoke habeas corpus review by a federal court, the

petitioner must satisfy two jurisdictional requirements: the

status requirement that the person be “in custody,” and the

substance requirement that the petition challenge the legality of

that custody on the ground that it is “in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2241(c)(3); see also Maleng v. Cook, 490 U.S. 488, 490

(1989). “Section 2241 is the only statute that confers habeas

jurisdiction to hear the petition of a federal prisoner who is

challenging not the validity but the execution of his sentence.”

Coady v. Vaughn, 251 F.3d 480, 485-486 (3d Cir. 2001). A

petition for a writ of habeas corpus under 28 U.S.C. § 2241 in

the district where the prisoner is confined provides a remedy

“where petitioner challenges the effects of events ‘subsequent’

to his sentence.” Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir.

1976).

In Woodall v. Federal Bureau of Prisons, 432 F.3d 235,

243-44 (3d Cir. 2005), the United States Court of Appeals for the

Third Circuit held that a district court has jurisdiction under §

2241 to entertain a federal prisoner's challenge to the failure

to transfer him to a community corrections center (“CCC”),

pursuant to a federal regulation. In holding that habeas

jurisdiction exists over this aspect of the execution of the

sentence, the Court of Appeals distinguished transfer to a CCC

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from a garden variety prison transfer:

Carrying out a sentence through detention in a CCC is

very different from carrying out a sentence in an

ordinary penal institution. More specifically, in

finding that Woodall's action was properly brought under

§ 2241, we determine that placement in a CCC represents

more than a simple transfer. Woodall's petition crosses

the line beyond a challenge to, for example, a garden

variety prison transfer.

The criteria for determining CCC placement are

instrumental in determining how a sentence will be

“executed.” CCCs and similar facilities, unlike other

forms of incarceration, are part of the phase of the

corrections process focused on reintegrating an inmate

into society. The relevant statute specifically provides

that a prisoner should be placed in a CCC or similar

institution at the end of a prison sentence to “afford

the prisoner a reasonable opportunity to adjust to and

prepare for ... re-entry into the community.” 18 U.S.C.

§ 3624. CCCs thus satisfy different goals from other

types of confinement. We have noted the relatively

lenient policies of CCCs as compared to more traditional

correctional facilities. CCC pre-release programs often

include an employment component under which a prisoner

may leave on a daily basis to work in the community.

Inmates may be eligible for weekend passes, overnight

passes, or furloughs. See United States v. Hillstrom,

988 F.2d 448 (3d Cir. 1993); see also United States v.

Latimer, 991 F.2d 1509, 1513 (9th Cir. 1993) (emphasizing

that community confinement is “qualitatively different”

from confinement in a traditional prison).

Given these considerations, and the weight of authority

from other circuits ..., we conclude that Woodall's

challenge to the BOP regulations here is a proper

challenge to the “execution” of his sentence, and that

habeas jurisdiction lies.

Woodall, 432 F.3d at 243-244 (footnotes omitted).

Unlike Woodall, Petitioner in this case challenges the

failure to transfer him from Fort Dix Low to Fort Dix Camp.

However, “habeas corpus cannot be used to challenge a transfer

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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.” Ganim v. Federal Bureau of Prisons, 235 Fed. Appx.

882, 884 (3d Cir. 2007) (quoting Pischke v. Litscher, 178 F.3d

497, 500 (7th Cir. 1999)). Applying Woodall, the United States

Court of Appeals for the Third Circuit held in Ganim v. BOP that

Ganim's challenge to the BOP's failure to transfer him from FCI

Fort Dix to the Federal Correctional Camp at Otisville, New York,

was not cognizable under § 2241 and that this Court erred by

failing to dismiss Ganim's § 2241 petition for lack of

jurisdiction. Similarly, this Court finds that it lacks

jurisdiction to entertain Petitioner's challenge to the failure

to transfer him from Fort Dix Low to Fort Dix Camp under 28

U.S.C. § 2241, and will dismiss the action, without prejudice to

the filing of a civil rights action of the kind authorized by

Bivens, 403 U .S. 388. See Ganim, 235 Fed. Appx. at 884 2

(vacating District Court's order denying § 2241 petition on

merits and remanding with instruction to dismiss the petition for

lack of jurisdiction); see also Levi v. Ebbert, 353 Fed.Appx.

681, 682 (3d Cir. 2009)(“We agree with the District Court that

 This Court's dismissal without prejudice should not be 2

construed as a comment on the merits of such a claim under

Bivens.

7

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Levi's claims concerning the determination of his custody level

do not lie at the “core of habeas” and, therefore, are not

cognizable in a § 2241 petition....None of his claims challenge

the fact or length of his sentence or confinement”(internal

citations omitted)); Cohen v. Lappin, 402 Fed.Appx. 674, 676 (3d

Cir. 2010) (“...Cohen's challenge to his security designation and

custody classification [do not challenge the basic fact or

duration of his imprisonment]... In the absence of the type of

change in custody level at issue in Woodall v. Federal Bureau of

Prisons, 432 F.3d 235 (3d Cir. 2005), such an objection is simply

not a proper challenge to the ‘execution’ of a sentence

cognizable in a § 2241 proceeding.”)

III. CONCLUSION

For the reasons stated above, the petition is hereby

dismissed for lack of jurisdiction, without prejudice to the

filing of a civil action.

Dated: February 3, 2012

s/ Jerome B. Simandle 

JEROME B. SIMANDLE

United States District Judge

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