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Burris v. Beasley

United States District Court, E.D. Arkansas, Eastern Division

March 7, 2018

MICHAEL W. BURRIS PETITIONER
v.
GENE BEASLEY, Warden, Federal Correctional Institution-Low, Forrest City, Arkansas RESPONDENT

          RECOMMENDED DISPOSITION

         I. Procedure for Filing Objections:

         This Recommended Disposition (“Recommendation”) has been sent to Judge James M. Moody Jr. Any party to this suit may file written objections with the Clerk of Court within 14 days of filing of the Recommendation. Objections must be specific and must include the factual or legal basis for the objection.

         By not objecting, any right to appeal questions of fact may be jeopardized. And, if no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing the record.

         II. Background:

         Petitioner Michael W. Burris filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2241. (Docket entry #1) Mr. Burris is in the custody of the Bureau of Prisons (“BOP”) at the Federal Correctional Complex in Forrest City, Arkansas.

         In his petition, Mr. Burris complains the BOP has wrongly designated him with a sex offender Public Safety Factor (“PSF”) based on a presentence report that was later supplemented. He asserts the PSF designation affects his eligibility to be transferred to a minimum security facility, his custody classification, and his ability to be transferred to a facility closer to his family. (#1 at 4-5) Mr. Burris claims that, as a result of the BOP assigning him a PSF designation, he has been denied due process and the Respondent has violated the Privacy Act. (#1 at 8) (citing 5 U.S.C. 552(a)).

         III. Discussion:

         A writ of habeas corpus “is an attack by a person in custody upon the legality of that custody, and. . .the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas corpus is the appropriate remedy when a claim “goes directly to the constitutionality of physical confinement or the shortening of its duration.” Id. at 489.

         Mr. Burris's challenge is based on a 1977 incident in which he and a co-defendant were charged with assault and battery with the intent to gratify sexual desires. According to Mr. Burris, his co-defendant pleaded guilty to the original charge, but he went to trial and was found guilty of assault only. (#1 at 4) Mr. Burris theorizes that the BOP “mistook the information from my PSI [Pre-Sentence Investigation report] and labeled me a Sex Offender and Placed a Public Safety Factor on my Custody Classification Form . . .” (Id.) Mr. Burris alleges that he requested an amendment to his PSI.

         Mr. Burris's claims are not cognizable under 28 U.S.C. § 2241 because they do not go directly to the constitutionality of his confinement or its duration. Where Mr. Burris serves his sentence and his designation while serving it does not fall under § 2241's purview. See e.g., Triplett v. Haynes, No. 2:13-CV-41-JTK-SWW, 2014 WL 2946074, at *2 (E.D. Ark. June 30, 2014); Rodebaugh v. Haynes, No. 2:13-CV-11- DPM-BD, 2013 WL 1001436 (E.D. Ark. March 13, 2013) (order adopting Recommended Disposition, 2013 WL 1003676, 2 (February 12, 2013)); Wilks v. Mundt, 25 F. App'x 492, 2002 WL 113837 (8th Cir. 2002)(unpublished opinion). On the other hand, “constitutional claims that merely challenge the conditions of a prisoner's confinement ... fall outside of that core.” Nelson v. Campbell, 541 U.S. 637, 643, 124 S.Ct. 2117, 2122 (2004).[1]

         Mr. Burris claims that, as a result of the BOP giving him a sex offender PSF designation, he has been denied due process, but he has not alleged facts to support the denial of a liberty interest under the due process clause. A PSF does not implicate a constitutionally protected liberty interest. Rodebaugh, at 1 (order adopting Recommended Disposition, 2013 WL 1003676, *2 (February 12, 2013)).

         In his reply, Mr. Burris relies on Jones v. Stiff, 2000 WL 34494817 (D. Minn. 2000) (unpublished decision) to support his argument that his due process claim is cognizable under § 2241. (#5) In that case, Jones, a § 2241 habeas petitioner, alleged that the BOP incorrectly assigned him a sex offender PSF, which rendered him ineligible for participation in the Residential Drug Abuse Treatment Program, including the possibility of a one-year sentence reduction. The BOP assigned the PSF because Jones's presentence report described one incident in his criminal history in which he was charged with criminal sexual assault, theft, aggravated assault, unlawful possession of a firearm, and unlawful use of a weapon.

         The factual basis for all of those charges arose after Jones allegedly pulled a woman into his dormitory room and forced her to have sex with him. After several male students knocked on the door, Jones opened it and brandished a handgun. The woman later refused to testify, and all five charges were dismissed. Jones was recharged with aggravated assault, unlawful use of a weapon, and unlawful restraint. He later pleaded guilty to the last two charges.

         Based on this record, the United States Magistrate Judge recommended granting Jones habeas relief because there was “insufficient evidence in the record to conclude that Petitioner's prior criminal history clearly indicates certain elements related to illegal sexual activity.” Jones, 2000 WL 34494817 at 2. The United States District Judge adopted the Recommended Disposition and directed the removal of the sex ...


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