Opinion
Civil No. 98-CV-1698 (LEK/GLS).
October 5, 1999
CHARLES D. FULLENWILEY, Plaintiff, Pro Se, FCI Ray Brook, Ray Brook, NY, For The Petitioner.
HON. DANIEL FRENCH, United States Attorney, Of Counsel, Charles E. Roberts, Esq., Assistant U.S. Attorney, Syracuse, NY, For The Respondent.
REPORT-RECOMMENDATION
I. INTRODUCTION
This matter was referred to the undersigned for a Report-Recommendation by the Hon. Lawrence E. Kahn, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B). Currently before the court is a motion to dismiss the petitioner's habeas corpus petition. (Dkt. No. 8). After reviewing this motion, the petition itself, and for the reasons set forth below, the defendants' motion should be granted.
II. BACKGROUND.
On May 16, 1996, the petitioner, Charles Fullenwiley, pled guilty to one count of Conspiracy to Traffic in Cloned Cellular Telephones and two counts of Possession of Cellular Telephone Cloning Equipment. He pled guilty to these crimes in the United States District Court for the District of Connecticut and was sentenced to an aggregate sentence of seventy-two months imprisonment with three years supervised release. Apparently, he was also ordered to self-surrender at FCI Ray Brook, which he did on October 24, 1996.
The petitioner claims that he appeared before the Ray Brook Inmate Classification Unit on April 10, 1997, for a security classification. It is the petitioner's contention that he was improperly classified and he was placed in a medium security facility (FCI Ray Brook) as a result. Specifically, he contends that the Bureau of Prisons ("BOP") improperly interpreted a prior state charge of "failure to appear" as an actual escape from custody. Due to this alleged misinterpretation, he argues that he is improperly housed in a medium security facility rather than a federal prison camp.
The respondent seeks dismissal presenting several bases to support the petition's demise. Most significantly, he argues that the court lacks subject matter jurisdiction over the BOP's classification decision and the petitioner's consequential placement in FCI Ray Brook. He claims that those convicted and sentenced to terms of incarceration for federal crimes are placed in the BOP's custody pursuant to 18 U.S.C. § 3621. According to the respondent, Section 3621(b) affords the BOP the broad discretion to designate the place of a prisoner's incarceration. He also maintains that subject matter jurisdiction over the BOP's discretion under §§ 3621(b) and 3624 is expressly negated by 18 U.S.C. § 3625. Consequently, the respondent contends that the petition must be dismissed for lack of jurisdiction.
After reviewing the petition, it is clear that the petitioner does not attack the legal foundation of his underlying conviction. Absent such an assertion, it is not apparent that the instant petition was correctly brought before this court. Although this is a potentially dispositive question, it requires no immediate resolution as discretionary decisions by the BOP made pursuant to its authority under § 3621(b) are not subject to judicial review. See 18 U.S.C. § 3625; Emerson v. United States of America, 1999 WL 638515 (7th Cir.(Ill.) August. 19, 1999) (unpublished disposition). The respondent is correct that § 3625 precludes jurisdiction over these matters by the federal courts. Consequently, the undersigned recommends that the instant habeas corpus petition be dismissed for lack of subject matter jurisdiction.
Even if the court had jurisdiction over the instant petition, the petitioner may have failed to exhaust his administrative remedies in this case. The failure to exhaust can be sufficient reason to dismiss a petition under certain circumstances.
WHEREFORE, for the foregoing reasons, it is hereby
RECOMMENDED, that the respondent's motion to dismiss the instant habeas corpus petition be GRANTED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
It is further ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.