U.S. v. DiGiacomo

Full title: UNITED STATES OF AMERICA v. ALEXANDER DiGIACOMO, JR

Court: United States District Court, E.D. Pennsylvania

Date published: Oct 28, 2004

Criminal No. 01-778-04, Civil Action No. 04-2860 (E.D. Pa. Oct. 28, 2004)

Opinion

Criminal No. 01-778-04, Civil Action No. 04-2860.

October 28, 2004

REPORT AND RECOMMENDATION

M. FAITH ANGELL, Magistrate Judge

Presently before this Court is a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner, Alexander DiGiacomo, Jr. In this § 2255 Motion, Mr. DiGiacomo presents one claim:

"The BOP deprived me of due process, (A) by finding that I violated TDAT without providing me with a fair hearing, and (B) by excessively punishing me as a result.

(A) On 10/16/03, after successfully completing the ICC (`boot camp') program at FPC Lewisburg, I was transferred to the Luzerne halfway house. A condition of my community confinement program was that I was to participate in TDAT. I participated in approximately 8 therapy sessions without incident. On 11/19/03, a substitute drug counselor and I got into a disagreement which escalated into an argument. She informed BOP personnel that I was refusing to participate in the TDAT program, which was not true. I met with BOP personnel on 11/21/03 and told them my side of the story. Also on 11/21/03, BOP personnel provided me with a BOP form which was supposed to advise me of my rights and tell me that I was in jeopardy of being expelled from the halfway house because of a TDAT program violation. However, nowhere on the form was I informed that because of my argument with the drug counselor, I was in jeopardy of being kicked out of the halfway house and reincarcerated. BOP Program Statement 7430.02 specifically instructs that when a TDAT counselor alleges that an inmate has violated the program, BOP personnel must provide `a written notification . . . to an inmate explaining that his . . . status in the program is in jeopardy.' Until I was expelled from the Luzerne halfway house, I did not know that the 11/19/03 incident had jeopardized my status in the TDAT program. The BOP deprived me of due process by violating BOP Program Statement 7430.02.

(B) I was found in violation of TDAT, reincarcerated, and lost all of my good time credit. In sanctioning me like this, the BOP has excessively punished me for one disagreement which I got into with the substitute TDAT counselor. It is very important for me to point out that the 8 other drug sessions that I had were with a different drug counselor, and I did not have any problems. On the day of the incident at TDAT, I had a new drug counselor because my other drug counselor was unavailable. The substitute drug counselor and I got into an argument, and from this argument, she inappropriately jumped to the conclusion that I was refusing to participate in the TDAT program. Nothing could be further from the truth. As a result of her complaint, BOP personnel gave me the harshest sanction possible by removing me from the halfway house, taking away my good-time behavior credit, and reincarcerating me. This sanction is disproportionate to the alleged misconduct and, thus, violated my due process rights."

§ 2255 Habeas Petition [Docket Entry No. 1] at pp. 5-6.

The Government has responded to Mr. DiGiacomo's § 2255 motion, arguing that his single habeas claim does not involve a constitutional challenge to his sentence, and is not, therefore, properly brought under 28 U.S.C. § 2255. The Government contends that a challenge to BOP decisions are properly brought under 28 U.S.C. § 2241 in the jurisdiction in which the prisoner or custodian is located. Because Mr. DiGiacomo is in confined in the Middle District of Pennsylvania, jurisdiction over any § 2241 motion is limited to that District. Government's Response To Petitioner's § 2255 Motion [Docket Entry No. 5] at pp. 1-3.

The Government is correct. As was recently reiterated by the Third Circuit in United States v. Eakman, 378 F.3d 294 (2004):

"[. . .] And to be sure, Section 2255 `is expressly limited to challenges to the validity of the petitioner's sentence' and `Section 2241 is the only statute that confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence.' Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001))."

Id. at p. 297 (3d. Cir 2004).

§ 2241 petitions must be brought in "the district of confinement." Rumsfeld v. Padilla, ___ U.S. ___, 124 S.Ct. 2711, 2722 (2004) ("The plain language of the habeas statute thus confirms the general rule that for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement.").

In light of clear caselaw, the instant § 2255 petition should be dismissed for lack of jurisdiction, and Petitioner be should be advised that he may present his habeas claim in a § 2241 motion filed in the Middle District of Pennsylvania.

RECOMMENDATION

Consistent with the above discussion, I recommend that Mr. DiGiacomo's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 be DENIED WITHOUT AN EVIDENTIARY HEARING for lack of jurisdiction. Petitioner may present his challenge to BOP actions in a § 2241 petition filed in the Middle District of Pennsylvania.