Opinion
02 CV 1861
April 29, 2003
Scott Dunn, Esq., ROSLYNN R. MAUSKOPF, Brooklyn, New York, for Respondent
MEMORANDUM AND ORDER
Elizabeth Carvajal-Garcia ("Petitioner"), acting pro se, brought the above-captioned petition to reduce her federal sentence. She claims that her sentence is harsher than that received by American citizens, and seeks to have her sentence of imprisonment reduced by six months. This Court finds that there is no relief that may be granted, and that the Petition must be dismissed.
BACKGROUND
Petitioner is an alien without lawful status to remain in the United States. On November 23, 1999, she pled guilty in federal district court in the Eastern District of New York to heroin importation in violation of 21 U.S.C. § 952 (a) and 960(a)(1)(A). She was sentenced by the Honorable I. Leo Glasser to a forty-six month term of imprisonment. Petitioner appealed her sentence to the Court of Appeals for the Second Circuit, which affirmed the judgment and conviction on October 23, 2001. Because she is an alien with no legal right to remain in the United States who was convicted of a crime subjecting her to deportation, she will be deported after completion of her sentence.Pursuant to 18 U.S.C. § 3624(c), United States citizens may be eligible, at the discretion of the Bureau of Prisons ("BOP"), to complete the last 10 percent of their sentences, up to six months, in reduced confinement facilities. Under BOP policy, deportable aliens such as Petitioner are ineligible to participate in early release into a halfway house under 18 U.S.C. § 3624(c). In lieu of the unavailable halfway-house placement, Petitioner moves this court to allow her to complete her sentence six months early and be deported.
DISCUSSION
Petitioner does not suggest any authority under which the Court may consider her request. In light of Petitioner's status as pro se litigant, the Court must liberally construe the allegations of the complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se complaint is held "to less stringent standards than formal pleadings drafted by lawyers."). Furthermore, a pro se complaint is interpreted so as "to raise the strongest arguments that [it] suggests."Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (citation omitted). Indeed, "courts may look to submissions beyond the complaint to determine what claims are presented by an uncounseled party." Boguslavsky v. Kaplan, 159 F.3d 715, 719 (2d Cir. 1998) (holding that pro se litigant should be afforded flexibility in pleading his or her action).Despite holding this Petition to a less stringent standard, the court is unable to find any avenues of relief. "In order to survive dismissal, a plaintiff must assert a cognizable claim and allege facts that, if true, would support such a claim." Boddie v. Schneider, 105 F.3d 857, 860 (2d Cir. 1997). Limited review of a criminal sentence may be available under Rule 35 of the Federal Rules of Criminal Procedure, however, that rule does not apply here. A Rule 35(a) motion seeking to correct a clear error must be filed within 7 days. The government has not made a motion for reduction of sentence for substantial assistance, as would be required under Rule 35(b).
Nor is habeas corpus review available, under 28 U.S.C. § 2241 or § 2255. Under federal regulation, prisoners are afforded administrative review of the computation of their sentences. See 28 C.F.R. § 542.10 — 542.16. Once a prisoner has exhausted the available administrative remedies, she may bring a petition seeking judicial review pursuant to 28 U.S.C. § 2241. Jimenez v. United States, No. 99 Civ. 10798, 2000 WL 28164, at *2 (S.D.N.Y., Jan. 14, 2000). However, Petitioner is not challenging the execution of her sentence or requesting that the Bureau of Prisons change her designation. Accordingly no relief is available pursuant to 28 U.S.C. § 2241.
Section 2255 of 28 U.S.C. provides for challenges to a conviction or sentence on the ground that the district court was without jurisdiction or that its judgment violated the United States Constitution or the laws of the United States. Thus, § 2255 is available only to remedy an error in sentencing "which inherently results in a complete miscarriage of justice." United States v. Wright, 524 F.2d 1100, 1101 (2d Cir. 1975). Further, § 2255 is intended to address the validity of a sentence when it was originally imposed. See Cabrera v. United States, 972 F.2d 23, 26 (2d Cir. 1992). Here, Petitioner appears to be seeking a downward departure, which was within the sentencing court's discretion but which does not implicate constitutional or jurisdictional issues with regard to her conviction or sentence. Accordingly, there is no claim that may be raised pursuant to § 2255. Agostino v. United States, No. 97 Civ. 1485, 1997 WL 220330, at *2 (S.D.N.Y. April 25, 1997) (finding that the relief sought by petitioner was unavailable under § 2255 because his motion seeking a reduction in his sentence based on 18 U.S.C §. 3624(c) and his status as a deportable alien raised "no more than a Guidelines claim which was not raised at the time of sentencing").
To the extent that Petitioner raises an equal protection claim based on the allegedly selective application of 18 U.S.C. § 3624 (c), she might have had an avenue for habeas review under 28 U.S.C. § 2255. However, Petitioner's failure to raise this claim on direct appeal would bar her from raising it in a proceeding under § 2255 without first showing a reasonable cause for default and actual prejudice arising therefrom. See Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993). Even if the Court could consider this claim, it is without merit. Other courts have specifically considered similar claims and rejected them. See United States v. Mira, No. 99 Cr. 327, 2002 WL 31075841, at *2 (S.D.N.Y. Sept. 18, 2002) (quoting United States v. Restrepo. 999 R2d 640, 645 (2d Cir. 1993) (finding that a BOP policy denying reassignment to relaxed-security facilities to deportable aliens would be an inappropriate basis for departure from the sentencing guidelines range). Accordingly, no habeas relief is available.
The Court notes that Petitioner previously raised a claim pursuant to 28 U.S.C. § 2241, which was dismissed. See Carvaial-Garcia v. United States, No. 01 Civ. 0801 (E.D.N.Y. February 26, 2001).
CONCLUSION
For the foregoing reasons, the Petition must be dismissed. The Clerk of the Court is directed to dismiss the Petition and close this case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith.SO ORDERED
JUDGMENT
A Memorandum and Order of Honorable Sterling Johnson Jr., United States District Judge, having been filed on April 28, 2003, dismissing the petition for a writ of habeas corpus; declining the issuance of a Certificate of Appealability: and certifying pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from the Court's Order would not be taken in good faith; it is
ORDERED and ADJUDGED that petitioner take nothing of the respondent; that the petition for a writ of habeas corpus is dismissed; that a Certificate of Appealability shall not issue; and that pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from the Court's Order would not be taken in good faith.