Summary
finding that challenges to the Bureau of Prisons' calculation of a sentence are properly raised under section 2241
Summary of this case from U.S. v. MaldonadoOpinion
00 Civ. 8274 (GEL)
February 20, 2001
Willie Raymond Garrett, pro se.
David J. Kennedy, Assistant United States Attorney, New York, N Y (Mary Jo White, United States Attorney for the Southern District of New York, of counsel), for respondent Frederick Menefee.
OPINION AND ORDER
Willie Raymond Garrett ("Garrett"), a federal prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing that the Bureau of Prisons has erroneously classified his sentence as non-parolable. His claim is frivolous.
Garrett was sentenced in the United States District Court for the Southern District of Florida to a term of 210 months on February 5, 1993, for a bank robbery that occurred on April 27, 1988. (Truman Dec. Ex. 1 at 2 Pet. ¶ 14(a).) As Garrett's crime occurred after November 1, 1987, the effective date of the Sentencing Reform Act, which abolished parole, the judgment in his case correctly provides that his sentence was "imposed pursuant to the Sentencing Reform Act of 1984." (Truman Dec. Ex. 1 at 1.) Thus, the Bureau's decision that his sentence is non-parolable is entirely correct.
Garrett contends that his sentence should be treatable as parolable because for a period of time in the late 1980s, the Sentencing Reform Act had been declared unconstitutional in the Southern District of Florida.United States v. Bogle, 689 F. Supp. 1121, 1124-25 (S.D. Fla. 1988) (en banc), stay denied, 855 F.2d 707 (11th Cir.), overruled by Mistretta v. United States, 488 U.S. 361 (1989). This claim is entirely without merit. Bogle had not been decided at the time of Garrett's crime, and by the time of his sentence, it had been overruled by the Supreme Court's decision in Mistretta, authoritatively upholding the constitutionality of the Act. The Bureau of Prisons has specifically addressed the anomaly of sentences imposed during the period in which the Act had been treated as unconstitutional in the Southern District of Florida, by treating sentences imposed in that district "on or after June 30, 1988 but prior to January 18, 1989" as parolable "old law" sentences. Federal Bureau of Prisons Directive 5880.28, page 1-87 (Feb. 21, 1992), available athttp://www.bop.gov. This provision by its terms does not apply to Garrett's sentence, and there is no legal or constitutional reason why it should, since Garrett's sentence was imposed at a time when it was clear that the Act applied and was constitutional. His sentence is, in fact and in law, a non-parolable, post-Act sentence.
The appropriate disposition of Garrett's frivolous petition is a slightly more complicated question. The Government argues that this Court lacks jurisdiction over the petition, because it is not properly filed under § 2241 and seeks relief only available under 28 U.S.C. § 2255. The Government correctly cites Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997), for the proposition that although challenges to the execution of a sentence (including challenges to the Bureau of Prisons' calculation of a sentence) are properly raised under § 2241 in the district where the inmate is imprisoned, challenges to the legality of the sentence itself may only be raised under § 2255 in the district of conviction. Although Garrett characterizes this petition as a challenge to a determination of the Bureau of Prisons, the Government points out that in this case, the Bureau is merely applying the judgment of conviction as it is written, and argues that Garrett's claim should therefore be treated as one directed to the judgment itself. It would follow from the Government's position that the claim should be transferred to the Southern District of Florida, see Diaz v. Olsen, 110 F. Supp.2d 295, 299 (D.N.J. 2000); cf.Borja-Palacio v. United States, 99 Civ. 0734 (AJP), 1999 WL 816165, at *6 (S.D.N.Y. Oct. 13, 1999). but only after giving petitioner a chance to withdraw the petition, so that petitioner might avoid the strictures of the limitations imposed on "second or successive" § 2255 petitions by 28 U.S.C. § 2244(b)(3). See Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998).
These distinctions seem altogether metaphysical under the circumstances of this case. First, petitioner has styled his application as one under § 2241, and as a challenge to the Bureau of Prisons' ruling. (Pet. ¶ 4.) While it is true that pro se petitions should be characterized according to the relief sought, and not to the label given to them by pro se prisoners unlearned in the law, see Chambers, 106 F.3d at 475, in this case the distinction between a challenge to the Bureau's determination and one to the underlying judgment is hardly crystalline. Moreover, it is apparent that petitioner, whose prior filings show that he is fully aware of the statute of limitations and successive petition provisions that limit his options under § 2255, has deliberately chosen not to invoke that remedy, and has not filed this petition under § 2241 in error. Second, the rule that authorizes reclassification of prisoners' petitions according to their substance is intended to give the benefit of the doubt to unschooled prisoners. But it is hardly clear how Garrett would benefit from treating his § 2241 petition as one brought pursuant to § 2255. As the Government acknowledges, so treating it would risk prejudicing future petitions, and thus would necessitate the cumbersome procedure of offering Garrett an opportunity to withdraw the petition. Third, in this case, the choice of withdrawing or transferring the petition is academic, not only because a petition under § 2255 would be frivolous on the merits, but also because such a petition woulditself be a "second or successive" petition, since Garrett has already filed one, unsuccessfully, in the Southern District of Florida. Garrett v. United States, 97-6476-CIV- Gonzalez (S.D. Fla. June 30, 1999) (unpublished). (Not to mention three other petitions filed in various courts pursuant to § 2241.)
The petition before this Court has been deliberately filed under § 2241; it is perfectly intelligible as such; and there is no benefit to petitioner or anyone else in treating it otherwise. There is thus no reason for this Court not to act on the petition before it.
CONCLUSION
Accordingly, to the extent that petitioner challenges, pursuant to § 2241, the Bureau of Prisons' order classifying his sentence as non-parolable, the petition is denied on the merits, since the Bureau's determination was correct. To the extent that petitioner seeks to challenge the underlying judgment of the United States District Court for the Southern District of Florida, the petition is dismissed for lack of jurisdiction, since such a challenge may only be had in that Court, pursuant to § 2255.
SO ORDERED