United States District Court, D. New Jersey
October 6, 2005.
ANTONIO RAFAEL MONTERO MORLOTTI, Petitioner,
WARDEN JOHN NASH, et al. Respondenta.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Plaintiff Antonio Rafael Montero Morlotti ("Montero Morlotti"),
a prisoner confined at the Federal Correctional Institution at
Fort Dix, New Jersey ("FCI Fort Dix"), has submitted a petition
for a writ of habeas corpus pursuant to
28 U.S.C. § 2241.*fn1 Respondents are John Nash, Warden of FCI Fort Dix, the INS, and the United States Attorney General (Petition.,
Caption.) Respondents have answered the Petition and moved to
dismiss the Petition. As it appears after review of the
submissions that Petitioner is not entitled to issuance of the
writ, the Court will deny relief and dismiss the Petition.
____ Petitioner was sentenced on May 16, 1997 in the U.S.
District Court for the District of Nevada for Distribution of a
Controlled Substance. (Answer, Statement of the Case.) He
received a sentence of 151 months imprisonment, with a following
five year period of supervised release. (Id.) On July 7, 1999
the former INS (now the BICE) lodged a detainer with FCI
Allenwood, Allenwood, Pennsylvania, requesting to be notified no
later than 30 days before the date of Petitioner's release.
(Id.) Petitioner was ordered to be removed from the United
States at the end of his sentence on January 26, 2000. (Pet.,
p. 2.) Petitioner mentions that for various legal reasons he can
not be deported to Cuba; however, his fundamental claim is that
the INS detainer impairs his right to an improved prison
classification and his access to rehabilitative programs. (Id., p. 4.)
Petitioner allegedly has attempted to persuade the INS to remove
the detainer in light of this loss of privileges, but has
received no response. (Id.)
____ Section 2241 constitutes the general habeas corpus statute
under which federal prisoners may seek relief for claims of
unlawful custody. A petition brought under § 2241 challenges the
very fact or duration of imprisonment, and seeks a determination
that a petitioner is entitled to immediate release or a speedier
release from that imprisonment. Preiser v. Rodriguez,
411 U.S. 475, 484-86, 500 (1973). See also Benson v. New Jersey State
Parol Board, 947 F.Supp. 827, 829-31 (D.N.J. 1966) (§ 2241
generally appropriate for claims challenging execution of
sentence for which immediate or speedier release is appropriate);
United States v. Walker, 980 F.Supp. 144, 145-46 (E.D.Pa. 1997)
(challenges to a sentence as imposed should be brought under §
2255; challenges to the manner in which a sentence is being
executed should be brought under § 2241).
The Petition appears to present a due process claim with
respect to Petitioner's inability to participate in
rehabilitative programs or to obtain more favorable
classification status because of the lodgment of the INS detainer. The Due Process Clause applies when government action
deprives a person of liberty or property. Greenholtz v. Inmates
of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7
(1979). Liberty interests protected by the Due Process Clause may
arise from the Due Process Clause itself or from the laws of the
states. Sandin v. Connor, 515 U.S. 472,483-84 (1995); Hewitt
v. Helms, 459 U.S. 460, 466-67 and n. 4 (1983). "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." Montanye v. Haymes,
427 U.S. 236, 242 (19760; see also Vitek v. Jones,
445 U.S. 480, 493 (1980). A federal inmate such as Montero Morlotti has no
liberty interest arising by force of the Due process Clause in
participating in rehabilitative programs, Moody v. Daggett,
429 U.S. 78, 88 n. 9 (1976), retaining minimum custody status,
Meachum v. Fano, 427 U.S. 215, 223-25 (1976), or being released
on parole prior to the expiration of his sentence, Greenholtz,
442 U.S. at 7.
Plaintiff simply does not enjoy any constitutional right to any
programs or services which he allegedly is disqualified from
because of the detainer. As stated by the Court in Ramirez v.
Hemingway, 2003 WL 2187256, *2 (E.D.Mich. July 22, 2003): Petitioner claims that his constitutional rights have
been violated because the detainer caused him to be
denied educational and rehabilitative programs,
desirable work assignments, appropriate security
level housing, and other unspecified benefits which
he claims would otherwise be available to him.
Congress has given federal prison officials full
discretion to control prisoner classification and
eligibility for rehabilitative programs,
18 U.S.C. § 4081; thus, a prisoner "has no legitimate statutory
or constitutional entitlement [to these programs]
sufficient to invoke due process." Moody v.
Daggett, 429 U.S. 78, 88 n. 9 (1976). In addition,
Petitioner has no constitutional right to be housed
in a particular prison, assigned a particular
security classification, or provided certain
educational programs. Meachum v. Fano, 427 U.S. 215
(1986). Thus, Petitioner's claims that the detainer
has precluded him from participating in certain
prison programs fail to establish any constitutional
See also McDonald v. New Mexico Parole Bd., 955 F.2d 631,
634 (10th Cir. 1991), cert. denied, 504 U.S. 920 (1992) ("Even
if Petitioner's claims were well grounded, however, the Supreme
Court has rejected the concept that these kinds of adverse
consequences of state action trigger a due process concern."
Citing Moody, 429 U.S. at 88 n. 9.) III. CONCLUSION
Based on the foregoing, the Court will deny Petitioner's § 2241
application and dismiss the Petition.
An appropriate Order accompanies this Opinion.
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