                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-11-2007

Marti v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2522




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Recommended Citation
"Marti v. Nash" (2007). 2007 Decisions. Paper 1320.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1320


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                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   NO: 06-2522

                                ________________

                                 PEDRO MARTI,

                                        Appellant

                                         v.

                             WARDEN JOHN NASH

                    ____________________________________

                  On Appeal From the United States District Court
                            For the District of New Jersey
                             (D.C. N.J. No. 05-cv-02344)
                   District Judge: Honorable Jerome B. Simandle
                  _______________________________________


                    Submitted Under Third Circuit LAR 34.1(a)
                                 April 6, 2007

        BEFORE: SLOVITER, McKEE and AMBRO, CIRCUIT JUDGES

                               (Filed: April 11, 2007)

                            _______________________

                                   OPINION
                            _______________________

PER CURIAM



    Appellant, Pedro Marti, appeals the judgment of the United States District Court for
the District of New Jersey dismissing his petition for writ of habeas corpus pursuant to 28

U.S.C. § 2241. For the reasons that follow, we will affirm.

       In October 2002, Appellant pleaded guilty to one count of conspiracy to possess

and distribute narcotics and was sentenced to 120 months of imprisonment to be followed

by five years of supervised release. Based on the facts provided in Appellant’s pre-

sentence investigation report, the Bureau of Prisons (“BOP”), in connection with its

inmate security designation and custody classification procedures, assigned Appellant a

public safety factor of “greatest severity.” This assignment precludes Appellant from

being placed at a minimum security level facility. See BOP Program Statement 5100.08,

Chapter 5, p. 7. Appellant filed a request for an administrative remedy with Appellee,

Warden John Nash, seeking removal of the assignment. Appellee declined to do so and

upheld the custody classification. Appellant appealed that decision to the regional director

of the Federal Bureau of Prisons, who denied the appeal. Appellant did not appeal that

decision to the Office of General Counsel, Federal Bureau of Prisons. Instead, Appellant

filed a petition for writ of habeas corpus with the District Court. After determining that

the petition was properly brought under § 2241, as Appellant challenged the “execution”

of his sentence, see Woodall v. Federal Bureau of Prisons, 432 F.3d

243-44, 235 (3d Cir. 2005), the District Court dismissed the petition, concluding that

Appellant had failed to exhaust his administrative remedies and, in the alternative, that his

petition lacked merit.




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       We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).

We exercise plenary review over the District Court’s legal conclusions. Cradle v. United

States, 290 F.3d 536, 538 (3d Cir. 2002).

       “Although there is no statutory exhaustion requirement attached to § 2241, we

have consistently applied an exhaustion requirement to claims brought under § 2241.”

Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000). Appellant has failed to fully exhaust

his administrative remedies. He asserts, however, that his failure to exhaust should be

excused because he never received a response to his administrative appeal due to the

“deplorable” condition of the prison’s mailing system. Even if we were to excuse

Appellant’s failure to exhaust his administrative remedies, we would agree with the

District Court that his claims are without merit.

       In order to obtain relief under § 2241, Appellant must establish that he is being held

in custody in violation of the Constitution or laws or treaties of the United States. See 28

U.S.C. § 2241. Appellant asserts that the BOP’s custody classification for him violates the

Due Process Clause and his rights under the Sixth Amendment.

       Appellant first contends that the assignment of the public safety factor “greatest

severity” is erroneous and has prevented him from being placed at a minimum security

level. Because Appellant has no due process right to any particular security classification,

see Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976), federal habeas relief is unavailable.

       Appellant also asserts a violation of his rights under the Sixth Amendment, on the

ground that the facts relied upon by the BOP in determining his classification pertain to a


                                              3
charge to which he did not plead guilty, apparently invoking the reasoning in such cases as

Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296

(2004), and United States v. Booker, 543 U.S. 220 (2005). Such an argument is not

available when, as here, the challenge is to the execution of a sentence, rather than the

imposition of a sentence.

       Accordingly, we will affirm the judgment of the District Court.




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