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C/A No. 5:18-cv-01332-RMG-KDW (D.S.C. Jul. 27, 2018)

C/A No. 5:18-cv-01332-RMG-KDW


Wissam Hammoud, Petitioner, v. Bonita Mosley, Respondent.


Wissam Hammoud ("Petitioner"), proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Petitioner is an inmate at Federal Correctional Institution ("FCI") Edgefield, a facility of the Federal Bureau of Prisons ("BOP"). Petitioner paid the filing fee. Receipt No. SCX400013358 (D.S.C.). I. Factual Background

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district court.

In the Amended Petition under review, Petitioner asks this court to order the BOP to remove notations in his prison file "regarding [his] involvement with international terrorism" and to "stop all forms of profiling/retaliation." ECF No. 13 at 8. Petitioner asserts that the BOP's designation of him as an international terrorist violates his Fifth and Fourteenth Amendment rights. Id. at 6-8. Although Petitioner broadly states that the international terrorist designation is "affecting his sentence," id. at 2, there are no allegations that show any effect of the terrorist designation on the manner of execution of his sentence. Also, there are no allegations from which it may be inferred that removal of the designation would shorten the sentence that Petitioner is serving. Instead, Petitioner's administrative remedy forms show complaints about hardship, mental anguish, and trauma allegedly suffered at the hands of BOP employees and inmates, but no complaints of increased sentence time as a result of the international terrorist designation. ECF No. 1-1 at 1-11. II. Standard of Review

Under established local procedure in this judicial district, a careful review has been made of the pro se Petition filed in this case. The review was conducted pursuant to the procedural provisions of the Rules Governing Habeas Corpus Cases Under Section 2254 and the Anti-Terrorism and Effective Death Penalty Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).

This court is required to construe pro se petitions liberally. Such pro se petitions are held to a less stringent standard than those drafted by attorneys, see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978), and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Amended Petition submitted in this case is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). III. Discussion

The Amended Petition under review is subject to summary dismissal because this court is without subject-matter jurisdiction to consider it under 28 U.S.C. § 2241. Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), overruled on other grounds by Heck v. Humphrey, 512 U.S. 477, 482 (1994). A petition for a writ of habeas corpus under 28 U.S.C. § 2241 is the proper method to challenge the execution of a federal sentence such as the administration of parole and sentence computation by prison officials. United States v. Little, 392 F.3d 671, 679 (4th Cir. 2004) (citing In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997)). However, a challenge to prison conditions and treatment, which do not affect the fact or length of a prisoner's custody, are properly raised through a civil rights action. Preiser, 411 U.S. at 499. Thus, the primary question presented by the Amended Petition now under review is whether Petitioner's conditions of confinement/retaliation claims may be reviewed by this court as a habeas claim under 28 U.S.C. § 2241 or whether they should have been brought as a constitutional-violation, conditions-of-confinement claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). The two remedies are distinct and federal courts routinely consider whether a prisoner's claim falls under habeas review or under the more general federal civil rights statute, 42 U.S.C. § 1983, or the Bivens Doctrine. See Wilkinson v. Dotson, 544 U.S. 74, 78-83 (2005) (reviewing the preceding thirty-two years of United States Supreme Court case law explaining which prisoner claims are appropriate for habeas review).

See Edwards v. Balisok, 520 U.S. 641, 648 (1997); Heck v. Humphrey, 512 U.S.at 481; Wolff v. McDonnell, 418 U.S. 539, 554 (1974). Each of these Supreme Court opinions contain discussions about the distinctions between habeas actions and § 1983 actions.

In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for the violation of federal constitutional rights. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983: federal officials cannot be sued under 42 U.S.C. § 1983 because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988).

Section 1983 is the procedural mechanism through which Congress provided a private civil cause of action based on allegations of federal constitutional violations by persons acting under color of state law. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731-32 (1989). The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails. Wyatt v. Cole, 504 U.S. 158, 161 (1992).

In the Preiser case in 1973, the United States Supreme Court decided that state prisoners cannot use a § 1983 action to challenge "the fact or duration" of their confinement. 411 U.S. at 489. The Supreme Court has since clarified this principle to hold that, regardless of the relief sought or conduct challenged, the proper remedy lies in habeas corpus only if "success in [an] action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson, 544 U.S. at 82. The Wilkinson Court held that in challenges to prison procedures, "where success in the action would not necessarily spell immediate or speedier release for the prisoner," § 1983 [or Bivens-type actions], not habeas corpus, would afford the appropriate remedy. Id. at 81 (emphasis in original); see Muhammad v. Close, 540 U.S. 749 (2004) (§ 1983 complaint is proper vehicle to challenge disciplinary convictions that did not result in loss of earned sentence credits). Thus, the determinative question for consideration in this report is whether success on Petitioner's claim herein would "necessarily spell [his] immediate or speedier release." Wilkinson, 544 U.S. at 81; see Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (federal court has an "independent obligation" to investigate the limits of its subject-matter jurisdiction); Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").

This court does not have habeas corpus subject-matter jurisdiction to consider Petitioner's claim because the relief requested would not affect the duration of his prison sentence. Even if the court ordered the BOP to remove the international terrorist designation from Petitioner's records and to avoid profiling and harassment, this result would not necessarily have any effect on the length of the sentence under which Petitioner is incarcerated and he would not be released from BOP custody. As such, no plausible habeas corpus claim is stated. Other federal courts that have considered claims similar to Petitioner's have held that they are not properly raised as habeas claims. See, e.g., Stanko v. Quay, 356 F. App'x 208, 210 (10th Cir. 2009) (challenge to security classification not a habeas claim); Marti v. Nash, 227 F. App'x 148, 150 (3d Cir. 2007) (same); Fulton v. Ledezma, No. CIV-08-945-W, 2009 WL 365649 (W.D. Okla. Feb. 13, 2009) (same). Petitioner should have filed his claims under the Bivens Doctrine, not under § 2241. IV. Recommendation

Accordingly, it is recommended that the Petition for a Writ of Habeas Corpus in this case be dismissed without prejudice.

Even though Petitioner cannot salvage his Amended Petition through amendment of his § 2241 claim, dismissal without prejudice is recommended because the Fourth Circuit has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013). --------

Florence, South Carolina


Kaymani D. West

United States Magistrate Judge

The parties are directed to note the important information in the attached

"Notice of Right to File Objections to Report and Recommendation."

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