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Royce v. Hahn

May 29, 1998

ZULIKEN S. ROYCE, APPELLANT
v.
JOHN E. HAHN, WARDEN



Before: Stapleton, Roth, and Weis, Circuit Judges.

The opinion of the court was delivered by: Weis, Circuit Judge.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 96-cv-00262E)

Submitted Pursuant to Third Circuit LAR 34.1(a) September 2, 1997

Filed: May 29, 1998

OPINION OF THE COURT

The issue in this case is whether mere possession of a firearm by a previously convicted felon is a "crime of violence" that triggers an obligation of federal prison authorities to notify local authorities upon an inmate's release. We answer that question in the negative and correspondingly hold that a Bureau of Prisons Program Statement to the contrary represents an incorrect interpretation of the relevant notification statute.

Petitioner Zuliken S. Royce was incarcerated in the federal correctional institution at McKean, Pennsylvania when he filed this petition. He had been convicted in the United States District Court for the Middle District of Florida on two counts -- possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and unlawful possession of a machine gun in violation of 18 U.S.C. § 922(o)(1). Although there were two counts, only one gun was involved. Petitioner had previously been convicted in state court on three felony drug charges and one count of second degree attempted burglary.

According to the presentence investigation report for the current conviction, on February 10, 1993 Secret Service agents investigating a trail of counterfeit money contacted petitioner at his business location. Petitioner denied knowledge of counterfeiting activity and consented to a search of the premises. At that point, he announced that he had a "Mac 10" under his desk for protection. The agents retrieved an unloaded RPB Industries M10, 9 millimeter machine gun from under the desk. They found no ammunition on the premises.

Following his conviction and incarceration, prison authorities classified petitioner as having committed "crimes of violence" pursuant to a definition of that term contained in the Federal Bureau of Prison's internal Program Statement No. 5162.02(7). As a result, he became subject to 18 U.S.C. § 4042(b), which requires the Bureau to notify local law enforcement authorities of the imminent release of inmates who had committed violent crimes and provide their names, criminal history, parole restrictions, and proposed residence.

Arguing that his offenses of conviction were not "crimes of violence," petitioner objected to this classification. After his appeals through the administrative process proved unsuccessful, petitioner filed this action in the United States District Court for the Western District of Pennsylvania. He alleged that the Bureau exceeded its authority in classifying his offenses as "crimes of violence" and in creating Program Statement 5162.02. Petitioner specifically asked the court to enter a declaratory judgment that he was "eligible for the non-application of 18 U.S.C. § 4042[b]."

A magistrate Judge recommended that the petition be denied for lack of subject matter jurisdiction. She reasoned that, under the traditional test for jurisdiction, petitioner failed to "make any colorable allegation that his underlying conviction is invalid or that he is otherwise being denied his freedom from unlawful incarceration." Despite the petition's specific request, the magistrate Judge did not rule on the declaratory relief aspect. The district Judge adopted the recommendation and dismissed the petition.

I.

This court has jurisdiction to review the denial of a habeas petition under 28 U.S.C. § 1291 and our review is plenary. United States ex rel. Schiano v. Luther, 954 F.2d 910, 912 (3d Cir. 1992). The pro se petition here challenges application of section 4042(b)'s notification requirement, but not the fact or duration of confinement. See Preiser v. Rodriquez, 411 U.S. 475, 484-85 (1973). Insofar as the district court found that it did not have subject matter jurisdiction under traditional 28 U.S.C. § 2241 analysis, the ruling was correct.

The label placed on a petition, however, is not determinative. As stated in Graham v. Broglin, 922 F.2d 379, 382-83 (7th Cir. 1991), if a petition asks for habeas corpus relief when petitioner "should have brought a civil rights suit, all he has done is mislabel his suit, and either he should be given leave to plead over or the mislabeling should simply be ignored." See also Fierro v. Gomez, 77 F.3d 301, 305 (9th Cir. 1996) (a court may construe a section 1983 complaint as a habeas petition and vice versa), vacated on other grounds, 117 S.Ct. 285 (1996). This admonition is especially weighty in pro se litigation. See United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance").

An inmate cannot avoid the exhaustion requirements that may be a prerequisite to a action by characterizing his suit as a civil rights complaint. Where exhaustion is not implicated, however, the case should not be dismissed until other legitimate avenues of relief are considered. Here, petitioner had already exhausted available administrative appeals and we conclude that his petition should have been construed as an action seeking a declaratory judgment under 28 U.S.C. §§ 1331 and 2201.

Rather than remanding for consideration as such by the district court, we will address the merits of the petition. We do so in the interest of judicial efficiency because there are no factual disputes, the issue presented is purely a question of law, and both parties have briefed the merits. See, e.g., Gibson v. Scheidemantel, 805 F.2d 135, 139 (3d Cir. 1986). Moreover, the issue is one frequently recurring that should be addressed at this time.

II.

The notification provision, 18 U.S.C. § 4042(b), requires the Bureau of Prisons to notify local law enforcement officials of the release of a prisoner who was"convicted of a crime of violence (as defined in section 924(c)(3))."*fn1 § 4042(b)(3)(B). In turn, 18 U.S.C. § 924(c)(3) defines a crime of violence as "an offense that is a felony and --

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

The firearm possession violations do not require proof of "use, attempted use, or threatened use" as an element of the crime. Thus, subsection (A) has no application to the circumstances of this case; only subsection (B) is relevant. See United States v. Canon, 993 F.2d 1439, 1441 (9th Cir. 1993). We review the Bureau's interpretation of subsection (B) for consistency with the plain ...


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