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


5-29-2007

Ganim v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3810




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Ganim v. Fed Bur Prisons" (2007). 2007 Decisions. Paper 1061.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1061


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 06-3810
                                  ________________

                                  JOSEPH P. GANIM,

                                            Appellant
                                             v.

            THE FEDERAL BUREAU OF PRISONS; HARVEY LAPPIN,
         IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE BUREAU
           OF PRISONS; JOHN NASH, IN HIS OFFICIAL CAPACITY AS
         FORMER WARDEN OF FCI FORT DIX, NEW JERSEY; WARDEN
            CHARLES E. SAMUELS, OF FCI FORT DIX, NEW JERSEY
                   ____________________________________

                    On Appeal From the United States District Court
                             For the District of New Jersey
                              (D.C. Civ. No. 06-cv-02957)
                      District Judge: Honorable Robert B. Kugler
                    _______________________________________


                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 16, 2007

          Before: SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES

                                (Filed: May 29, 2007)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Joseph P. Ganim is currently serving his 108-month term of imprisonment at

FCI–Fort Dix. He requested a transfer to the Federal Correctional Camp at Otisville,
New York, to be closer to his family members, who encounter difficulty in visiting him

from a distance. A prison official denied his request “due to [inmate] release residence

being within 500 miles.” (Appendix at Ex. 2 (Petition at Ex. A).) After “the denial was

consistently upheld on [administrative] appeals,” (Id. at Ex. 2a (Memorandum in support

of Petition at 2)), Ganim challenged the decision in a petition pursuant to 28 U.S.C.

§ 2241.

       In his petition, Ganim argued that (1) the 500 mile rule that the prison official

relied on did not apply to transfers between institutions of the same security level for

closer-to-home purposes; (2) the 500 mile rule is an invalid “blanket rule” because it does

not allow the Bureau of Prisons (“BOP”) to consider an inmate’s particular circumstances

and the factors explicitly stated in 18 U.S.C. § 3621(b); (3) the BOP must comply with its

own program statement and Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir.

2005), and consider the sentencing judge’s recommendation, and the history and

characteristics of the prisoner, when evaluating a request for a transfer. He also raised a

due process claim by alleging a protected liberty interest in the proper application of the

BOP’s rules and regulations.

       The District Court denied Ganim’s petition. It concluded that Ganim had not

exhausted his administrative remedies, and alternatively determined that Ganim’s claims

were without merit. Ganim appeals.1


   1
   Ganim also filed a motion for reconsideration, repeating his contention that he had
exhausted his administrative remedies and presenting argument on the merits of his

                                              2
       We must first determine if Ganim could proceed under 28 U.S.C. § 2241. The

language of § 2241, as well as the common-law history of the writ of habeas corpus,

define the essential purpose of the writ – to allow a person in custody to attack the

legality of that custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). However,

a federal prisoner may challenge the execution of his sentence in a petition pursuant to

§ 2241. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001).

       “[T]he precise meaning of ‘execution of a sentence’ [remains] hazy. Woodall, 432

F.3d at 242. In Woodall, considering rulings from the Courts of Appeals of the Second,

Sixth, Ninth, and Tenth Circuits, and the plain meaning of the term “execution” (to put

into effect or carry out), we allowed a § 2241 challenge to regulations that limited a

prisoner’s placement in a community correction center (“CCC”). See id. at 243. We

noted that “[c]arrying out a sentence through detention in a CCC is very different from

carrying out a sentence in an ordinary penal institution.” Id. Specifically, in finding

Woodall’s action properly brought pursuant to § 2241, we determined that “placement in

a CCC represents more than a simple transfer.” Id. We stated that “Woodall’s petition

crosse[d] the line beyond a challenge to, for example, a garden variety prison transfer.”

Id.

       Ganim, who challenges a decision not to transfer him from federal prison in New

Jersey to a similar facility in New York, does not cross the line that Woodall crossed.


claims. The District Court disregarded the argument regarding exhaustion, noting that its
previous order was a denial on the merits, and otherwise denied Ganim’s motion.

                                              3
Ganim presents a challenge to a decision relating to a simple or garden variety transfer.

The cases we cited approvingly in Woodall were not challenges to routine transfers. We

relied in particular on Jiminian v. Nash, 245 F.3d 144 (2d Cir. 2001), Hernandez v.

Campbell, 204 F.3d 861 (9th Cir. 2000), United States v. Jalili, 925 F.2d 889 (6th Cir.

1991), and Montez v. McKinna, 208 F.3d 862 (10th Cir. 2000).2

       Jiminian used expansive language to state that “a motion” pursuant to § 2241

generally challenges the execution of a federal prisoner’s sentence, including such matters

as the administration of parole, computation of a prisoner’s sentence by prison officials,

prison disciplinary actions, prison transfers, type of detention and prison conditions.” 245

F.3d at 146. However, Jiminian was a case about whether 28 U.S.C. § 2255 was an

inadequate or ineffective remedy for a prisoner who attempted to use § 2241 to raise

claims that had been rejected in his first § 2255 motion. Id. at 145-46. The court in

Jiminian cited Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997), as

authority for its list of appropriate uses of a § 2241 petition. See Jiminian 245 F.3d at

146. However, Chambers itself only lists examples of § 2241 petitions challenging the

calculation or length of sentences. See 106 F.3d at 474-75 (citing cases from the Second,

Fifth, and Eighth Circuits).

       Hernandez, like Jiminian, described the use of § 2241 in broad strokes, noting that

petitions under § 2241 are those “that challenge the manner, location, or conditions of a


   2
    We also cited a series of district court cases, all of which related to CCC issues akin
to Woodall’s challenge.

                                              4
sentence’s execution.” Hernandez, 204 F.3d at 865. However, also like Jiminian,

Hernandez dealt with the savings clause of § 2255, which allows a § 2241 petition when a

§ 2255 motion is inadequate or ineffective to test the legality of a detention. See id. at

864-66. The cases that the Hernandez court cited in support of its proposition, Doganiere

v. United States, 914 F.2d 165, 169-70 (9th Cir. 1990), and Brown v. United States, 610

F.2d 672, 677 (9th Cir. 1980), both related to parole decisions. The routine transfer that

Ganim has in mind is far removed from a determination about the length of a sentence.

The BOP review of the transfer request, which is the real relief that Ganim seeks

(Appellant’s Brief at 5), is even farther removed.

       The prisoner in Jalili challenged the execution of his sentence, arguing that his

confinement in a secure prison instead of a community treatment center violated the terms

of his sentence. See 925 F.2d at 891-92. As in Woodall, and unlike Ganim’s case, the

difference between the two facilities was great. Similarly, the transfer at issue in

Montez was no simple transfer within the same system – the prisoner challenged transfers

from a Wyoming state-operated prison to a private Texas correctional facility and from

the Texas facility to a private Colorado correctional facility.3 See 208 F.3d at 864.

       We find further support for our distinction of Ganim’s case from Woodall’s in

Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999). In Pischke, the court held that “habeas


   3
    Furthermore, although the Court of Appeals for the Tenth Circuit allows an inmate to
raise a claim of a transfer to a private prison “procedurally under § 2241,” the Tenth
Circuit does not consider it a cognizable federal constitutional claim. Rael v. Williams,
223 F.3d 1153, 1154-55 (10th Cir. 2000).

                                              5
corpus cannot be used to challenge a transfer between prisons . . . unless the custody in

which the transferred prisoner will find himself when transferred is so much more

restrictive than his former custody that the transfer can fairly be said to have brought

about . . . ‘a quantum change in the level of custody.’” Id. (citations omitted). While we

did not look for a quantum change in Woodall, in that case, we noted many distinctions

between a traditional correctional facility and a CCC when we considered the two types

of confinement. See 432 F.3d at 243 (noting that at CCCs, unlike in prison, inmates may

be eligible for short-term releases for daily work in the community, overnight and

weekend passes, and longer furloughs). We do not find such distinctions here between a

federal prison in New Jersey and a federal prison in New York, both of which have the

same security level.

       For the reasons stated above, we conclude that Ganim’s claims were not properly

brought pursuant to § 2241. Accordingly, the District Court was without jurisdiction to

consider Ganim’s petition. We will therefore vacate the District Court’s order denying

Ganim’s petition. On remand, the District Court is instructed to dismiss Ganim’s petition

for lack of jurisdiction.




                                              6
