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Gardner v. Grandolsky

October 26, 2009

ALBERT GARDNER, APPELLANT
v.
J. GRANDOLSKY, WARDEN



On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 08-cv-06127) District Judge: Honorable Renee Marie Bumb.

Per curiam.

PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) October 13, 2009

Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

Albert Gardner appeals pro se from an order by the United States District Court for the District of New Jersey denying his petition for a writ of habeas corpus. For the following reasons, we will affirm the District Court's decision.

I.

In 2006, Gardner pleaded guilty to one charge of possession with intent to distribute cocaine hydrochloride.

The United States District Court for the District of Minnesota sentenced him to a 30 month term of imprisonment for that charge, a 27 month term of imprisonment for violating a previously-imposed term of supervised release, and a three year term of supervised release. The sentence was based, in part, on a two-level enhancement for possession of a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1). The sentencing judge recommended that Gardner participate in the Residential Drug Abuse Treatment Program ("RDAP"), if eligible.

Gardner is imprisoned at the Federal Correctional Institution at Fort Dix, New Jersey, and was accepted into that institution's RDAP. However, Gardner was advised that successful completion of the RDAP would not make him eligible for early release because a Bureau of Prisons ("BOP") regulation, 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000), categorically excludes felons whose offense involved possession of a firearm. Gardner challenged the prison's decision through the prison's available administrative procedures without success. In December 2008, Gardner filed a pro se petition for a writ of habeas corpus in the United States District Court for the District of New Jersey.

The District Court denied the petition and Gardner filed this timely pro se appeal.

II.

We have jurisdiction pursuant to 28 U.S.C. ยงยง 1291 and 2253. We review de novo the District Court's denial of habeas corpus relief, and review findings of fact for clear error. Vega ...


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