NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

:

RODOLFO GODOY, :

: Civil Action No. 11-3754 (NLH)

Petitioner, :

:

v. : O P I N I O N

:

WARDEN DONNA ZICKEFOOSE, :

:

Respondent. :

________________________________:

APPEARANCES:

Petitioner pro se Counsel for Respondent

Rodolfo Godoy Daniel Shay Kirschbaum

#38570-018 Asst. U.S. Attorney

F.C.I. Fort Dix 970 Broad Street

P.O. Box 2000 Suite 700

Fort Dix, NJ 08640 Newark, NJ 07102

HILLMAN, District Judge

Petitioner Rodolfo Godoy, a prisoner currently confined at

the Federal Correctional Institution at Fort Dix, New Jersey, has

submitted a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241. The sole respondent is Warden Donna Zickefoose. 1

 Section 2241 provides in relevant part: 1

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.

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

prisoner unless-- ... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States ... .

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Respondent filed an Answer to the Petition on November 4, 2011.

The Court has reviewed all submissions. For the following

reasons, the Petition will be denied. 

BACKGROUND

After a conviction on federal drug charges, Petitioner was

sentenced on October 25, 2007, in the United States District

Court, Middle District of Florida, to 120 months of incarceration

followed by a 96-month term of supervised release. His projected

release date is October 21, 2016.

Upon arrival into the Bureau of Prison’s (“BOP”) custody,

Petitioner was assigned a Public Safety Factor (“PSF”) of

Deportable Alien, pursuant to the BOP’s Program Statement

5100.08. Petitioner was given the PSF of Deportable Alien based

on Petitioner’s Presentence Investigation Report (“PSR”), which

determined that Petitioner was a citizen of Cuba. The

Immigration and Customs Enforcement Agency (“ICE”) also lodged a

detainer against Petitioner.

Petitioner admits that he is a citizen of Cuba. However, he

argues that because Cuba refuses the return of citizens, he will

not be deported. Therefore, he argues, he is a “non-deportable

alien.” (Petition, p. 4). Because of his PSF of Deportable

Alien issued by the BOP, Petitioner is subject to increased

security measures, including ineligibility for early release

consideration under 18 U.S.C. § 3621(e)(2)(B). Petitioner

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asserts that the BOP policy violates his constitutional rights,

and the Administrative Procedures Act (“APA”), 5 U.S.C. § 702, et

seq.

Respondent counters that the BOP’s issuance of the PSF of

Deportable Alien is proper and should not be disturbed, and that

Petitioner has no liberty interest in his place of confinement.

Petitioner has not filed a reply.

DISCUSSION

A. Standard of Review

Petitioner seeks a writ of habeas corpus pursuant to 28

U.S.C. § 2241(c)(3). That section states that the writ will not

be extended 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).

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

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). 

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B. The Petition Will Be Denied.

This Court agrees with Respondent that Petitioner’s PSF was

properly applied. According to the BOP Program Statement

5100.08, Chap. 5, p. 9, the PSF of “Deportable Alien” applies to:

A male or female inmate who is not a citizen of the United States

this PSF applied. When applied, the inmate or the long-term

detainee shall be housed in at least a Low security level

institution.

The PSF shall not be applied, or shall be removed when

the U.S. Immigration and Customs Enforcement (ICE) or

the Executive Office for Immigration Review (EOIR) have

determined that deportation proceedings are unwarranted

or there is a finding not to deport at the completion

of deportation proceedings. The Institution Hearing

Program CMA of NO IHP or IHP CMP ND will then be

applied. Additionally, the PSF shall not be applied if

the inmate has been naturalized as a United States

citizen.

In this case, Petitioner admits that he falls into the

category of “deportable alien” due to his Cuban citizenship. The

fact that Petitioner cannot be deported is of no consequence. 

See e.g., Perez v. Lappin, 672 F. Supp.2d 35 (D.D.C. 2009)

(Deportable Alien PSF as applied to Mariel Cuban did not violate

Petitioner’s constitutional rights or violate the Administrative

Procedures Act).

Additionally, Petitioner’s claim that his PSF classification

deprives him of liberty without due process, in violation of the

Fifth Amendment, must fail. See, e.g., Montanye v. Haymes, 427

U.S. 236, 242 (1976) (“As long as the conditions or degree of

confinement to which the prisoner is subjected is within the

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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.”); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (“We

have rejected the notion that every state action carrying adverse

consequences for prison inmates automatically activates a due

process right. ... The same is true of prisoner classification

and eligibility for rehabilitative programs in the federal

system. Congress has given federal prison officials full

discretion to control these conditions of confinement, 18 U.S.C.

§ 4081, and petitioner has no legitimate statutory or

constitutional entitlement sufficient to invoke due process.”);

Sandin v. Conner, 515 U.S. 742, 484 (1996) (“[Liberty interests

conferred by government action] 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.”). See also Wilks v. Mundt,

25 Fed. Appx. 492, 2002 WL 113837 (8th Cir. Jan 30, 2002) (no

liberty interest implicated by Sex Offender PSF).

Petitioner’s classification, and resultant ineligibility for

certain BOP programming, does not impose on him an atypical and

significant hardship. 

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Further, the exclusion of persons subject to a PSF of

Deportable Alien from certain BOP programming does not violate

the Equal Protection Clause. Regulations such as those

challenged here classify prisoners as those who are subject to

custodial considerations (including those who have PSF status)

and those who are not, not on the basis of alienage. See McLean

v. Crabtree, 173 F.3d 1176, 1185-86 (9th Cir. 1999), cert.

denied, 528 U.S. 1086 (2000). Accordingly, “the Equal Protection

Clause requires only that the classification rationally further a

legitimate state interest.” See Nordlinger v. Hahn, 505 U.S. 1,

10 (1992).

Excluding prisoners subject to PSFs or other custodial

considerations from participation in programs involving custody

issues is rationally related to the Bureau’s legitimate interest

in preventing such prisoners from fleeing. See McLean, 173 F.3d

at 1185-86. Thus, the PSF and the program limits it triggers, do

not violate the Equal Protection Clause.

Finally, by statute, the BOP's decision to assign a PSF is

not subject to judicial review under the APA. See 18 U.S.C. §

3625 (“The provisions of ... 701 through 706 of title 5, United

States Code, do not apply to the making of any determination,

decision, or order under [18 U.S.C. §§ 3621-26].”); see Burnam v.

Marberry, No. 07-0097, 2008 WL 4190785, at *7 (W.D. Pa. Sept. 10,

2008) (concluding, alternatively, that the assignment of a PSF

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“was made pursuant to [the BOP's] discretionary responsibilities

regarding the designation of an inmate's place of imprisonment,

and any subsequent transfers, bestowed on it under 18 U.S.C. §

3621(b),” and thus is not “subject to judicial review under

Subsection 706(2)(A) of the APA”), aff'd, 313 Fed. Appx. 455 (3d

Cir. 2009).

CONCLUSION

For the reasons set forth above, the Petition must be

denied. An appropriate order follows.

 s/ Noel L. Hillman 

NOEL L. HILLMAN

United States District Judge

Dated: July 5, 2012

At Camden, New Jersey

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