United States District Court, D. New Jersey
October 6, 2005.
JOSE CAICEDO, Petitioner,
C.J. DeROSA, WARDEN, Respondent.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Petitioner Jose Caicedo, 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 sole respondent is Warden C.J.
This Court previously has severed and transferred the claim
made in Ground One, and has denied the claim made in Ground Two regarding the calculation of good time credits. In this Opinion,
the Court will address Petitioner's remaining claim, made in
Ground Three, that Respondent has deprived him of the right to
due process by preventing his consideration for placement within
favorable programming within the BOP due to his alien status.
Petitioner arrived in the United States on February 28, 1992,
from Columbia, the country of his birth.
Petitioner currently is serving a sentence of 70 months
imprisonment imposed pursuant to conviction in the United States
District Court for the Southern District of New York on or about
February 24, 2003. Respondent has applied to Petitioner a Public
Safety Factor of "Deportable Alien" in light of Petitioner's
status as a citizen of Colombia. Petitioner is not, however, the
subject of a removal action by the Bureau of Immigration and
Customs Enforcement; nor has the BICE lodged an immigration
detainer against Petitioner with the Bureau of Prisons.
Petitioner has not challenged his Public Safety Factor through
the Bureau of Prisons Administrative Remedy Program.
Here, Petitioner contends that the Respondent has improperly
treated him as an alien and deprived him of consideration for
placement in certain BOP programming based upon that status. He
alleges that he is a "national" of the United States based upon
the facts that he has lived most of his life in the United States, he has family in this country (including his children),
he has paid substantial taxes in this country, and he owes his
allegiance to this country.
Respondents answer that (a) this Court should not address
Petitioner's claim because he has failed to exhaust his
administrative remedies, (b) Petitioner has no basis to challenge
his Public Safety Factor, (c) this Court lacks jurisdiction to
address the citizenship claim, and (d) Petitioner is not a U.S.
national. Petitioner has not filed a reply.
A. Exhaustion of Administrative Remedies
Petitioner has not exhausted the administrative
remedies*fn2 available to him to challenge his Public Safety
Factor. Although 28 U.S.C. § 2241 contains no statutory
exhaustion requirement, a federal prisoner ordinarily may not bring a petition for writ of
habeas corpus under 28 U.S.C. § 2241, challenging the execution
of his sentence, until he has exhausted all available
administrative remedies. See, e.g., Callwood v. Enos,
230 F.3d 627, 634 (3d Cir. 2000); Arias v. United States Parole
Comm'n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v. Alldredge,
481 F.2d 303, 306 (3d Cir. 1973). The exhaustion doctrine
promotes a number of goals:
(1) allowing the appropriate agency to develop a
factual record and apply its expertise facilitates
judicial review; (2) permitting agencies to grant the
relief requested conserves judicial resources; and
(3) providing agencies the opportunity to correct
their own errors fosters administrative autonomy.
Goldberg v. Beeler, 82 F.Supp.2d 302
, 309 (D.N.J. 1999),
aff'd, 248 F.3d 1130 (3d Cir. 2000). See also Moscato v.
Federal Bureau of Prisons, 98 F.3d 757
, 761 (3d Cir. 1996).
Nevertheless, exhaustion of administrative remedies is not
required where exhaustion would not promote these goals. See,
e.g., Gambino v. Morris, 134 F.3d 156
, 171 (3d Cir. 1998)
(exhaustion not required where petitioner demonstrates futility);
Lyons v. U.S. Marshals, 840 F.2d 202
, 205 (3d Cir. 1988)
(exhaustion may be excused where it "would be futile, if the
actions of the agency clearly and unambiguously violate statutory
or constitutional rights, or if the administrative procedure is
clearly shown to be inadequate to prevent irreparable harm");
Carling v. Peters, 2000 WL 1022959, *2 (E.D. Pa. 2000) (exhaustion not required where delay would
subject petitioner to "irreparable injury").
Here, there is no dispute regarding the relevant factual
record, nor does this matter require application of the agency's
particular expertise. Accordingly, the purposes of the exhaustion
requirement would not be served by requiring the Petitioner to
exhaust his administrative remedies, and this Court will proceed
to determine Petitioner's claim on the merits.
B. The Public Safety Factor Claim
Petitioner's claim that his 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 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
Petitioner's classification, and resultant ineligibility for
certain BOP programming, does not impose an atypical and
significant hardship on him.
Moreover, the claim of U.S. nationality upon which Petitioner
bases his due process claim is meritless.*fn3 To the extent Petitioner asks this Court to grant him citizenship,
this Court lacks jurisdiction to accommodate him. "There are `two
sources of citizenship, and two only: birth and naturalization.'"
Miller v. Albright, 523 U.S. 420, 423 (1998) (citation
omitted). Petitioner does not allege citizenship status by birth
or by completion of the naturalization process.
The Immigration and Nationality Act defines a "national" as
"(A) a citizen of the United States, or (B) a person who, though
not a citizen of the United States, owes permanent allegiance to
the United States." 8 U.S.C. § 1101(a)(22). The Court of Appeals
for the Third Circuit has held that, "for one . . . who is a
citizen of another country, nothing less than citizenship will
show `permanent allegiance to the United States.'" Salim v.
Ashcroft, 350 F.3d 307, 310 (3d Cir. 2003). As Petitioner does
not even allege that he completed the naturalization process,
claim, too, must fail. III. CONCLUSION
For the reasons set forth above, the Petition must be denied as
to the claim made in Ground Three. An appropriate order follows.
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