Summary
dismissing inmate's claim that the delay in his return to a state facility deprived him of "valuable state programs for rehabilitation and early parole" and denied him due process
Summary of this case from Fermin-Rodriguez v. Westchester Co. Jail Med. PersonnelOpinion
00 Civ. 918 (SWK)
January 22, 2001
MEMORANDUM OPINION AND ORDER
Pursuant to 28 U.S.C. § 2241, pro se petitioner Eugenio Cruz ("Cruz") asks the Court to (1) order that he be moved from federal custody to a New York state facility; and (2) resentence Cruz to time served or to a sentence of imprisonment concurrent with Cruz's state sentence. For the reasons set forth below, Cruz's application is denied.
BACKGROUND
In 1989, following a jury trial on two narcotics-related counts, the Court sentenced Cruz to 78 months imprisonment to be followed by five years supervised release. On or about August 24, 1995, Cruz was released from custody and began his term of supervised release.
On December 22, 1998, following conviction on three counts of Criminal Sale of a Controlled Substance, Cruz was sentenced in New York Supreme Court to a term of imprisonment of six years to life. Pursuant to a writ of habeas corpus ad prosequendum. The United States Marshal's Service transferred Cruz, who was serving the state sentence, from Oneida State Correctional Facility to the Southern District of New York to face Violation of Supervised Release charges in the Southern District. Cruz arrived in the Southern District on April 6, 1999.
On May 19, 1999, Cruz appeared before the Court and pled guilty to a violation of one of three Specifications. Specifically, Cruz pled guilty to having committed the state crime of Criminal Sale of a Controlled Substance in the Second Degree. On that date, the Court sentenced Cruz to a term of incarceration of 12 months and one day to be served consecutive to Cruz's state sentence.
The instant petition was received on January 12, 2000. On or about February 3, 2000, the United States Marshal's Service transferred Cruz from the federal correctional installation at Otisville ("FCI-Otisville") to Downstate Correctional Facility, a New York State facility. Cruz is currently in state custody.
DISCUSSION
Section 2241 of Title 28, titled "Power to grant writ," sets forth the general jurisdictional basis authorizing federal courts to grant writs of habeas corpus. See 28 U.S.C. § 2241. In 1948, Congress enacted Section 2255 primarily to serve as a more efficient and convenient substitute for the traditional habeas corpus remedy. See Triestman v. United States, 124 F.3d 361, 373 (2d Cir. 1997). At the same time, Congress did not completely foreclose the use of Section 2241 as a remedy for federal prisoners. See id. Section 2241 remains an option whenever a Section 2255 motion is "inadequate or ineffective" to test the legality of a prisoner's detention. See Triestman v. Keller, No. 97-CV-1460, 1998 WL 52026, at *2 (N.D.N.Y. Feb. 2, 1998) (citing In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997)). Since the passage of Section 2255, however, Section 2241 has only been used in limited situations such as actions challenging the administration of parole, computation of good time credit, prison disciplinary actions, and extradition and deportation. See id. (collecting cases)
II. Failure to Return Cruz to State Custody
Cruz asserts that the failure to return him to a state correctional facility shortly after the Court sentenced him on May 19, 1999, constitutes a violation of his Fifth Amendment right to Due Process. See Cruz's Petition at 2. Cruz further alleges that the failure to return him to a state facility constituted an abuse of the "Administrative Process" by the Federal Bureau of Prisons and the United States Marshal's Service. See id. In his supporting documents, Cruz states that he was informed by an official at FCI-Otisville that the time Cruz spent there following sentencing by this Court is "dead time." Memorandum of Law in Support of Petitioner's Case ("Cruz Memo.") at 2. As a result, Cruz argues, the delay in his return to a state correctional facility deprived him of "valuable state programs for rehabilitation and early parole." Cruz Memo. at 4. Through the instant petition, Cruz seeks reduction of his federal sentence and also an order returning him to New York state custody for completion of his state sentence. See Cruz's Petition at 2.
Cruz's application to be returned to state custody is moot. On February 3, 2000, approximately one month after Cruz filed the instant petition, Cruz was returned to a New York state facility.
Cruz also seeks redress for an alleged violation of his right to Due Process. "To state a due process violation — procedural or substantive — Plaintiff must first show a deprivation of a constitutionally protected property or liberty interest." Adler v. County of Nassau, 113 F. Supp.2d 423, 428 (E.D.N.Y. 2000) (citing White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1061-62 (2d Cir.), cert. denied, 510 U.S. 865 (1993)). Cruz contends that he was "injured and harmed by the fact he ha[d] been in federal custody for over 8 months without the benefits of receiving either federal or state programs which may have advanced his state and/or federal release date." Cruz's Memo. at 2. The Supreme Court has stated, however, that "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."Greenholtz v. Inmates of Nebraska Penal Correctional Complex, 442 U.S. 1, 7 (1979); see also Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976) (noting that prisoners do not have a liberty interest under the Constitution in "prisoner classifications and eligibility for rehabilitative programs in the federal system."). Indeed, other courts have rejected claims similar to Cruz's on the grounds that no liberty interest is involved. See, e.g., Luken v. Scott, 71 F.3d 192, 193-94 (5th Cir. 1995) (holding that the "loss of the opportunity to earn good-time credits, which might lead to earlier parole . . . . do[es] not create constitutionally protected liberty interests."); Stewart v. Davies, 954 F.2d 515 (8th Cir. 1992) ("[T]he district court did not err in finding that [the petitioner] had no due process right to or liberty interest in participation of rehabilitative programs or in a possibility of parole.") Thus, Cruz has not alleged the deprivation of a cognizable property or liberty interest necessary to sustain his claim.
Even assuming, arguendo, that Cruz could establish a cognizable claim, the Court would deny Cruz's application for his failure to pursue an administrative remedy prior to bringing this action. It is well-settled that "[t]he Bureau of Prisons, and not the courts, determines when a defendant's sentence starts and whether the defendant should receive credit for any time spent in custody." United States v. Gonzalez, 192 F.3d 350, 353 (2d Cir. 1999) (quoting United States v. Montez-Gaviria, 163 F.3d 697, 700-01 (2d Cir. 1998)). Cruz seeks a reduction of his federal sentence to account for the time he spent in federal custody, which may or may not have deprived him of the opportunity to earn an early release. See Cruz's Petition at 2. Simply put, Cruz's "request for credit against his federal sentence must first be presented to the Bureau of Prisons before it is ripe for adjudication here." Delima v. United States, 41 F. Supp.2d 359, 364 (S.D.N.Y. 1999)
Cruz concedes that he did not pursue an administrative remedy. Subsequent to the filing of his petition, and the Government's response to it, Cruz submitted an affidavit stating that an official at FCI-Otisville "informed me there was nothing administratively I could do, thus I commenced an action in federal court to remedy the irreparable harm suffered as a result of being in a lengthy holdover period of federal custody." Cruz Affidavit dated May 5, 2000 ("Cruz Aff."), ¶ 10. Cruz offers no other explanation or excuse for his failure to pursue an administrative remedy within the Bureau of Prisons. There is nothing before the Court to indicate that Cruz received an unfavorable disposition within the Bureau of Prisons, or that Cruz even initiated review of his complaint there. Nor can the Court infer that Cruz is unable to pursue such a remedy because he is currently in a New York state facility. "A non-federal inmate must exhaust the administrative remedies available to federal inmates, even if that means that the individual will have to wait until he is a federal inmate before pursuing a hearing on his application." Arashi v. United States, No. 94 Civ. 7603, 1995 WL 358676, at *3 (S.D.N.Y. June 14, 1995) In sum, the Court finds no basis to excuse the requirement that Cruz exhaust his administrative remedies prior to bringing suit in federal court. Accordingly, and for the reasons set forth above, Cruz's application for relief under 28 U.S.C. § 2241 is denied.
CONCLUSION
For the reasons set forth above, Cruz's motion, pursuant to 28 U.S.C. § 2241, asking the Court to (1) order that he be moved from federal custody to a New York state facility; and (2) resentence Cruz to time served or to a sentence of imprisonment concurrent with Cruz's state sentence, is denied.
SO ORDERED.