The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Eduardo Francisco Quezada-Ruiz, an inmate confined at the
Federal Correctional Institution at Fort Dix, New Jersey ("FCI
Fort Dix"), filed a Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2241, see Quezada-Ruiz v. DeRosa, Civil No. 04-2081
(FLW), and a Complaint for damages and injunctive relief, see
Quezada-Ruiz v. Nash, Civil No. 04-5646 (FLW).*fn1 In the
habeas action, Petitioner challenges a detainer for possible
removal lodged against him at FCI Fort Dix by the Department of Homeland
Security (DHS), formerly the Immigration and Naturalization
Service ("INS"). In the Complaint, Petitioner challenges the
Bureau of Prison's ("BOP") determination that he is not eligible
for placement in a community corrections center ("CCC"), see
18 U.S.C. § 3624(c), or early release pursuant to
18 U.S.C. § 3621(e)(2)(B) to complete the community stage of the residential
drug abuse treatment program.*fn2 After careful
consideration, the Court will dismiss both actions because the
BOP cancelled the challenged detainer and properly determined
that Petitioner is not eligible for placement in a CCC and early
release.
Except as noted, the facts are not in dispute. Petitioner is
currently serving a sentence imposed by Senior Judge Charles R.
Butler, Jr., in the United States District Court for the Southern
District of Alabama on April 12, 1996, amended October 16, 1996,
after he was extradited from Colombia.*fn3 Based on his plea
of guilty to one count of conspiracy to distribute and possess
with intent to distribute cocaine, see 21 U.S.C. § 846, Judge
Butler sentenced Petitioner to a 168-month term of imprisonment,
followed by five years of supervised release. See United
States v. Quezada-Ruiz, Docket No. 92-cr-0048 (CB-2) j.
conviction (S.D. Ala. filed April 12, 1996). According to the docket, the judgment of
conviction provides that, upon completion of the term of
imprisonment, Petitioner is to be delivered to an immigration
official for possible removal and, if he is not removed, he must
participate in a program of testing and treatment for
drug/alcohol abuse. The amended judgment provides that, "If not
deported, within 72 house from custody of the BOP, the defendant
shall report in person to the Probation Office in the district to
which he is released." Id.
On July 15, 2003, the DHS lodged a detainer against petitioner
at FCI Fort Dix indicating that an investigation had been
initiated to determine whether Petitioner was subject to removal
from the United States ("removal detainer"). The removal detainer
requests notice of Petitioner's release date, which the BOP
projects as February 20, 2006. After challenging the detainer
through the BOP's Administrative Remedy Program, Petitioner filed
the Petition for Writ of Habeas Corpus, Civil No. 04-2081 (FLW).
The Petition raises two grounds for relief: (1) the removal
detainer violates the Extradition Agreement between the United
States and Colombia, whereby Petitioner was extradited to the
United States for criminal drug prosecution, and the rule of
specialty, which prohibits the United States from proceeding
against Petitioner for any nonextraditable act, including a
removal proceeding, until he has had a reasonable time to return
to Colombia; and (2) the failure of the DHS and BOP to recognize
his non-deportable status and the BOP's determination that he is
not eligible for placement in a community corrections center
("CCC") and early release violates the rule of specialty.
Petitioner seeks a writ ordering the government to cancel the
removal detainer and the "Deportable Alien" public safety factor,
and to grant him early release and immediate placement in a CCC. The government filed an Answer to the Petition, accompanied by
the declarations of Kisha Hebbon, Attorney Advisor for the BOP at
FCI Fort Dix, and Susan G. Roy, Assistant Chief Counsel, DHS,
Newark, New Jersey, with attached exhibits. Respondent contends
that, by Notice of Action dated July 15, 2004, the DHS cancelled
the removal detainer dated July 15, 2003, and replaced it with a
detainer "for notification purposes only." (Decl. of Susan G.
Roy, dated July 21, 2004, Form I-247.) The notification-only
detainer provides:
Please accept this notice as a detainer. This is for
notification purposes only and does not limit your
discretion in any decision affecting the offender's
classification, work and quarters assignments, or
other treatment which he or she would otherwise
receive.
(Id.)
Although the notification-only detainer contains checkoff boxes
to indicate the inmate's immigration status, none of the boxes is
checked and the notification-only detainer does not provide any
indication of Petitioner's immigration status. Nor does the
notification-only detainer request notice of Petitioner's release
date, although it contains a checkoff box for requesting 30 days
advance notice of release. Susan Roy explains the significance of
the notification-only detainer as follows:
The purpose of the notification detainer is to advise
DHS/ICE when the petitioner is scheduled to be
released from custody and returned to Colombia and/or
Chile in accordance with the terms of the extradition
treaty. DHS/ICE will have no further interest in the
petitioner unless he does not leave the country in
accordance with the terms of the extradition treaty,
but instead manifests an intent to remain in the
United States.
Should the petitioner manifest such an intent, he
will be considered an intending immigrant, and in
that situation, will be subject to removal
proceedings. See Matter of Badalamenti, 19 I&N
Dec. 623 (BIA 1988). (Roy Decl. ¶¶ 7-8.)
Respondent asks this Court to dismiss the Petition. First,
Respondent argues that Petitioner failed to exhaust the BOP's
Administrative Remedy Program. Second, Respondent contends that,
by cancelling the immigration detainer and replacing it with a
notification-only detainer, the government complied with the
Extradition Agreement and the rule of specialty. Third,
Respondent maintains that Petitioner has no constitutionally
protected liberty interest in early release or placement in a
CCC, and that he is not eligible for early release because he
does not satisfy the eligibility criteria for placement in a CCC.
See 28 C.F.R. § 550.58(a)(1)(v); Program Statement 7310.04, ¶
10 (Dec. 16, 1998).
In his Reply to the Answer and in the Complaint docketed as
Civil No. 04-5646 (FLW), Petitioner asserts that he exhausted the
BOP's Administrative Remedy Program when he presented the issue
to the Central Office on August 11, 2004. Petitioner challenges
the BOP's determination that he is not eligible for placement in
a CCC or early release pursuant to 18 U.S.C. § 3621(e)(2)(B),
arguing that the Extradition Agreement and the rule of specialty,
see 18 U.S.C. § 3192, allow him to remain in the United States
until he has completed the five-year period of supervised release
following his term of imprisonment and been given a reasonable
period of time to leave the country. Petitioner maintains that,
because he is not subject to removal until after completion of
the five-year period of supervised release and a reasonable
period of time to depart, he is eligible for CCC placement and
early release and the BOP's refusal to place him in a CCC
pursuant to 18 U.S.C. § 3621(e) was an abuse of discretion and
violates the rule of specialty. II. DISCUSSION
Section 2241 of Title 28 of the United States Code provides in
relevant part:
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).
"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).
This Court has subject matter jurisdiction under § 2241 to
consider Petitioner's challenge to the denial of CCC placement
and early release because Petitioner seeks not to vacate or
correct his sentence, but to challenge the execution of the
sentence by the BOP. See Barden v. Keohane, 921 F.2d 476,
478-79 (3d Cir. 1991); 2 James S. Liebman & Randy Hertz, Federal
Habeas Corpus Practice and Procedure § 41.2b (3rd ed. 1998).
Moreover, if the BOP incorrectly determined his eligibility for
CCC placement and early release, this error carries a potential
for a miscarriage of justice that can be corrected through habeas
corpus. Murray v. Carrier, 477 U.S. 478, 495 (1986); Barden,
921 F.2d at 479. B. Exhaustion
As a preliminary matter, Respondent maintains that the Petition
is subject to dismissal because Petitioner failed to appeal the
denial of his administrative remedy by the Regional Director to
the General Counsel's Office. Specifically, Kisha Hebbon avers
that the computerized index of administrative appeals indicates
that Petitioner has not filed an administrative remedy with the
Cental Office. Petitioner counters that dismissal on
nonexhaustion grounds is not appropriate because he appealed to
the General Counsel on August 11, 2004; the detainer at issue is
the seventh detainer lodged by immigration officials at various
institutions since 1996 and he sought administrative relief each
time a detainer was lodged; and exhaustion would in any event be
futile. (Reply to Answer, Exhaustion of Administrative Remedies.)
The government did not respond to Petitioner's assertion that he
presented his claim to the General Counsel on August 11, 2004.
Under these circumstances, this Court will not dismiss the
Petition for failure to exhaust administrative remedies.
Petitioner does not dispute that BOP's regulations exclude from
consideration for early release inmates "who are not eligible for
participation in a community-based program as determined by the
Warden on the basis of his or her professional discretion."
28 C.F.R. § 550.58(a)(1)(v). Nor does he dispute that inmates "who
are assigned a `Deportable Alien' Public Safety Factor . . .
shall not ordinarily participate in CCC programs" under Program
Statement 7310.04, ¶ 10.b. In essence, the question presented is
whether the BOP's determination that Petitioner is not eligible
for CCC placement and early release under
18 U.S.C. § 3621(e)(2)(B) and 28 C.F.R. § 550.58(a)(1)(v) violates the rule
of specialty and is ...