Opinion
Case No. 2:04CV00648.
December 10, 2004
ORDER
BACKGROUND
Before the Court is plaintiff Carlos Hernandez-Ramirez's petition for Habeas Corpus relief pursuant to 28 U.S.C. § 2255. Plaintiff requests the Court to reduce his sentence because he believes he as a non-citizen is deprived of certain rights that U.S. citizen prisoners receive. Plaintiff was sentenced to serve 57 months in the California City Correctional Center. Once he completes his sentence he is to be deported.
ANALYSIS
A. Motion Pursuant to 28 U.S.C. § 2255
Section 2255 allows an inmate in custody to bring a collateral attack to a sentencing decision if "the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such a sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . ." 28 U.S.C. § 2255. A § 2255 petition for collateral relief does not take the place of a direct appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Failure by the defendant to file a direct appeal of the sentence imposed could possibly result in a procedural default that prevents a court from considering the merits of the petition. Norris v. United States, 687 F.2d 899, 903 (7th Cir. 1982). See also Scott v. United States, 997 F.2d 340, 340 (7th Cir. 1993) (stating that § 2255 petition seeking reduction of sentence for alleged misapplication of Guidelines was untimely because petitioner had failed to appeal sentence directly).
Because of plaintiff's deportation status, plaintiff claims that he is precluded from participating in the Bureau of Prisons drug treatment program, from being assigned to a minimum security prison, and from being eligible for "prerelease custody." Were the plaintiff allowed to participate in the drug treatment program, he claims he may be eligible for up to a one year reduction in his sentence. Plaintiff claims his inability to participate in a drug program, to be assigned to a minimum security prison, or to be granted prelease custody constitutes what plaintiff believes to be disparate treatment violating his right to equal protection under the Fourteenth Amendment and his right to due process under the Fifth Amendment.
Plaintiff's constitutional claims involve a two-step analysis. First, he must show members of a certain group are being treated differently from other persons based on membership in that group. See Jones v. Helms, 452 U.S. 412, 423-24 (1981). Second, if plaintiff demonstrates that a cognizable class is treated differently, the court must analyze, under the appropriate level of scrutiny, whether the distinction made between the groups is justified. Plyler v. Doe, 457 U.S. 202, 217-18 (1982). Federal laws that classify on the basis of alienage receive "the lowest level of judicial review." See United States v. Lopez-Flores, 63 F.3d 1468, 1476 (9th Cir. 1995). "Only classifications that arbitrarily subject all resident aliens to different substantive rules from those applied to citizens will fail to survive scrutiny." Id.
The United States Bureau of Prisons' policies regarding aliens who are facing deportation once they have completed their sentences are rationally related to legitimate concerns about flight risks and safety. Inmates who are to be deported once released are much more of a flight risk "than prisoners who are attempting to rejoin American society." U.S. v. Acevedo, 2000 WL 764563, 2 (D.Kan. 2000). These policies are not arbitrary and, consequently, are not violative of plaintiff's equal protection or due process rights. Plaintiff's request for relief on this issue is accordingly DENIED.
CONCLUSION
The Court finds that plaintiff's equal protection and due process rights have not been violated and therefore DISMISSES plaintiff's Habeas Corpus Petition with prejudice.