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EINSTMAN v. FEDERAL BUREAU OF PRISONS

August 23, 2005.

PAUL G. EINSTMAN, Petitioner,
v.
FEDERAL BUREAU OF PRISONS, et al., Respondents.



The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge

OPINION

Petitioner Paul G. Einstman, 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.*fn1 The Respondents are the Federal Bureau of Prisons, Harley Lappin, and Warden John Nash. Because it appears from a review of the Petition that Petitioner is not entitled to issuance of the writ, this Court will dismiss the Petition. See 28 U.S.C. § 2243.

  I. BACKGROUND

  Petitioner was sentenced on July 14, 2004, to a term of imprisonment of 18 months, pursuant to which he is currently confined. Petitioner's projected release date is February 5, 2006. Petitioner has not been advised of his Pre-Release Preparation Date.

  Petitioner contends that the Bureau of Prisons' December 2002 policy governing pre-release transfer to Community Corrections Centers is "illegal." Petitioner requests that the Court order Respondents to immediately consider him for up to six months pre-release placement in a CCC.

  Petitioner contends that exhaustion of administrative remedies would be futile.

  II. STANDARDS FOR A SUA SPONTE DISMISSAL

  United States Code Title 28, Section 2243 provides in relevant part as follows:

  A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto. A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. 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). Nevertheless, a federal district court can dismiss a habeas corpus petition if it appears from the face of the petition that the petitioner is not entitled to relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). See also 28 U.S.C. §§ 2243, 2255.

  III. ANALYSIS

  A. Jurisdiction

  This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 2241(a) and (c) in that Petitioner challenges his custody, in this district, under the authority of the United States and in violation of the laws of the United States. See United States v. Ferri, 686 F.2d 147, 158 (3d Cir. 1982), cert. denied, 459 U.S. 1211 (1983) (claims attacking the execution of a petitioner's sentence are properly brought under 28 U.S.C. § 2241). See also Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991) ("challenges to the length, appropriateness or conditions of confinement are properly brought under 28 U.S.C. § 2241").

  Indeed, "Section 2241 of title 28 has long been recognized as the basis for challenging the execution of the sentence of a person in federal custody or a person sentenced for violating a federal criminal statute." Zucker v. Menifee, 2004 WL 102779, *3 (S.D.N.Y. January 21, 2004) (citing Maleng v. Cook, 490 U.S. 488, 493 (1989) (per curiam)). Additionally, this Court has the authority to compel the BOP to exercise its authority to select and designate a place for service of sentence. See McCarthy v. Doe, 146 F.3d 118 (2d Cir. 1998). Habeas corpus relief under 28 U.S.C. § 2241 is available to ...


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