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KIVELA v. UNITED STATES AG

October 15, 1981

Kip KIVELA, Petitioner,
v.
UNITED STATES ATTORNEY GENERAL: Director of the United States Bureau of Prisons, Respondents



The opinion of the court was delivered by: WEINFELD

Petitioner, now confined to the Federal Metropolitan Correction Center, New York City, upon his transfer from Vermont pursuant to the provisions of 18 U.S.C. § 5003 *fn1" seeks a writ of habeas corpus which in effect would nullify the transfer and direct his return to the custody of the Correction Department of the State of Vermont. He contends that his transfer and his confinement in a federal institution violates his right to due process of law, to the equal protection of the laws, and meaningful access to the courts under the Federal Constitution.

Petitioner's application for the writ and his affidavit in support of a preliminary injunction to restrain his transfer omits reference to the basis for his imprisonment in the State of Vermont. The respondents, in opposing this application, have supplied the information. Petitioner, at the time of his transfer into the custody of the Federal Bureau of Prisons, was under sentence in the State of Vermont for the following crimes:

 
(1) manslaughter 12-15 years;
 
(2) assault and robbery w/dangerous weapon 11-15 years;
 
(3) kidnapping 9-15 years;
 
(4) aiding and concealment of stolen property (two separate and unrelated charges) 4-8 years.

 All sentences are to run concurrently with a minimum release date with good time of 10/20/89 and without good time of 10/24/92; maximum release date with good time of 02/02/92 and without good time of 10/24/95. The manslaughter offense involved beating to death a Burlington, Vermont man with a hammer and robbing the victim of his wallet. The original charge was murder in the first degree but was reduced to the manslaughter charge. The kidnapping charge concerned another Burlington, Vermont man who was bound, gagged and left in an attic.

 On October 25, 1980, the day following the incident which led to the manslaughter charge, petitioner was confined to the Chittenden Community Correctional Center, Vermont. On April 29, 1981, he was transferred on an emergency basis to the St. Albans Correctional Facility, Vermont. At both institutions, he accumulated numerous disciplinary infractions, and as a result, it was recommended *fn2" that the petitioner be transferred to an out-of-state facility on the grounds that:

 
(1) all in-state treatment and rehabilitation programs available were unsuitable for petitioner; and
 
(2) there are no Vermont facilities with adequate security to deal with petitioner's assaultive and threatening behavior over an extended period and that his conduct poses a serious threat to the safety and security of Vermont facilities and the community at large.

 On July 19, 1981, after state proceedings *fn3" not challenged here, Vermont, as authorized by its statute for the transfer of its prisoners to the federal prison system, *fn4" entered into the contract with the federal authorities pursuant to 18 U.S.C. § 5003 whereby petitioner was transferred to the Federal Bureau of Prisons for the service of his state-imposed sentences. Recently the Supreme Court upheld § 5003 as a broad charter authorizing states to transfer their prisoners to the Federal Bureau of Prisons under appropriate circumstances for their "custody, care, subsistence, education, treatment and training," *fn5" provided that the Federal Government is reimbursed in full for all expenses involved.

 Petitioner, in a discursive and argumentative petition, presents four general claims in urging his re-transfer to the custody of Vermont:

 
(1) that by confinement in a federal institution for service of his sentence, he will be denied certain benefits that are available to Vermont prisoners serving terms equal to or longer than that imposed upon him thereby denying him the equal protection of the laws;
 
(2) that in his language he "is placed at a distinct disadvantage due to the fact that he is a very youthful appearing boy (he will be 20 years of age in November 1981) with delicate and effeminate good looks who will be subject to physical pressure, homosexual rape attempts and perhaps even life threatening situations due to his inexperience and ...

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