The opinion of the court was delivered by: Thomas J. Mcavoy Senior U.S. District Judge
Petitioner Jerome Collins, an inmate at the Federal Correctional Institution in Ray Brook, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. On October 25, 2001, Petitioner was sentenced in the United States District Court for the Eastern District of New York to serve an aggregate term of 204 months in federal prison following his conviction for interference with commerce by threat or violence (robbery) in violation of 18 U.S.C. § 1951 and § 3551 eq seq. (two counts) and brandishing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Dkt. No. 1 at 2. See United States v. Collins, No. 1:00-CR-01079, at Dkt. Nos. 50-51. The Second Circuit affirmed his conviction in a Mandate issued August 14, 2002. Collins, No. 1:00-CR-01079, at Dkt. No. 66.
Petitioner does not contest his conviction. Rather, he asserts that the Federal Bureau of Prisons ("BOP") incorrectly calculated his custody classification score. Dkt. No. 1, Memorandum of Law ("Mem.") at 5-7. Specifically, Petitioner asserts that he was incorrectly assessed six points*fn1 in his Base Custody Score for having a history of serious violence based upon a prior assault conviction because there is no documented evidence that the assault occurred or that there was a finding of guilt. Dkt. No. 1, Mem. at 2. Respondent has filed a response, together with a memorandum of law and the pertinent records. Dkt. No. 8. For the reasons that follow, the petition is denied and dismissed.
The following factual summary is derived from the records attached to the petition and to Respondent's Response. Federal inmates are designated and classified within the BOP based on their security and custody levels. See Dkt. No. 8-1, Declaration of Ralph Miller ("Declaration") at 2; Dkt. No. 8-1, Ex. A. (Program Statement #P5100.08 - Inmate Security Designation and Custody Classification, Sept. 12, 2006). During custody classification, inmates are assigned a level of supervision based on their criminal history and institutional behavior and adjustment. Dkt. No. 8-1, Ex. A, Ch. 6 at 1. Custody levels indicate how much staff supervision a particular inmate requires. Id. Male correctional institutions are classified into five different security levels: Minimum, Low, Medium, High, and Administrative. Dkt. No. 8-1, Declaration at 2; Ex. A at Ch. 1 at 1.
To determine an inmate's custody and security levels, the BOP scores the inmate using a Custody Classification Form. The form is designed to assist BOP officials in evaluating the factors that are relevant in determining the level of security a particular inmate needs while incarcerated. Dkt. No. 8-1, Declaration at 2. Inmates receive various scores on factors such as whether he or she has a detainer, the severity of the current offense, the nature and extent of the inmate's history of violence or disciplinary reports, and program participation. Dkt. No. 8, Resp't Mem. at 2-3 (citing Dkt. No. 8-1, Ex. A, Ch. 6). The security level is determined by adding together the points an inmate receives in each category. Dkt. No. 8-1, Declaration at 2 (citing Ex. A, Ch. 6 at 1-2).
One of the factors BOP officials consider during the classification process is an inmate's history of violence. Dkt. No. 8-1, Ex. A, Ch. 6 at 6-7. Past incidents of violence may be either minor or serious. Id. A minor history of violence is defined as "[a]ggressive or intimidating behavior which is not likely to cause serious bodily harm or death (e.g., simple assault, fights and domestic disputes, etc.)." Id. at 7. A serious history of violence is one that includes "[a]ggressive or intimidating behavior which is likely to cause serious bodily harm or death (e.g., aggravated assault, domestic violence, intimidation involving a weapon, incidents involving arson or explosives, rape, etc.)." Id. There must have been a finding of guilt in order for the BOP to assess points based on a past incident of violence. Id. at 6. In determining the severity of the incident of violence, the BOP may take into account the "offense behavior underlying the conviction regardless of the ultimate offense of conviction." Dkt. No. 8-1, Declaration at 2 (citing Ex. A, Ch. 6 at 6-7). The recency of the violent incident is also considered when assessing classification points. Dkt. No. 8-1, Declaration at 2-3.
Finally, documented evidence from juvenile offenses may be considered "unless the record has been expunged or vacated." Dkt. No. 8-1, Ex. A, Ch. 6 at 7.
A pre-sentence report was prepared in anticipation of Petitioner's sentencing hearing for his 2001 federal conviction. See Dkt. No. 1, Ex. 1. According to the report, Petitioner was arrested on August 17, 1995 for an assault charge when he was fifteen years old. Id. at ¶ 32. Although the arrest did not appear on Petitioner's criminal records check, he reported it during his pre-sentence interview on the advice of counsel. Id. See also Dkt. No. 1, Ex. 2 (transcript excerpt at 5). Petitioner admitted that he was arrested for a "shooting charge" and was sentenced as a youthful offender to one year in custody by the Staten Island Supreme Court. Dkt. No. 1, Ex. 1 at ¶ 32. Based upon the information Petitioner provided, a Federal Bureau of Investigations agent learned the arrest date of the assault, but could not obtain further information because the case appeared to be sealed. Id. The probation officer who prepared the pre-sentence report recommended that Petitioner be assessed two criminal history points for the assault. Id.
On December 17, 2001, a BOP staff member initially classified Petitioner's custody and security levels. See Dkt. No. 8-1, Ex. C. The staff member found that Petitioner had a serious incident of violence within the ten years preceding his federal conviction based upon the assault. Id. ("VIOLENCE: 5-10 YRS SERIOUS"). Petitioner was designated to FCI Ray Brook, a medium security facility. Id.
On April 28, 2008, a Request for Transfer/Application of Management Variable form was prepared on behalf of Petitioner by staff at FCI Ray Brook. See Dkt. No. 8-1, Ex. B. The request recommended that Petitioner be transferred to "any appropriate Low security level facility" and indicated that "[t]he Sentence Length Public Safety Factor is no longer applicable due to the passage of time. The BP-337 reflects a violence history of serious 5-10 years, the BP-338 no longer reflects this due to the fact that the case was sealed." Id.
The transfer request was evaluated by Ralph Miller, a Designator with the BOP. See Dkt. No. 8-1,Declaration at 1, 3. Miller determined that Petitioner should receive four points for a history of serious violence based upon the 1995 assault, resulting in a security classification of 19. Id. at 4. In making that determination, Miller reviewed the pre-sentence investigation and Petitioner's initial classification form that designated him to FCI Ray Brook. Id. at 3-4. He found that the 1995 assault was properly considered for purposes of determining whether Petitioner had a prior history of violence because (1) Petitioner was sentenced to serve one year in custody for the assault, which could not have happened absent a conviction; (2) the pre-sentence investigator assessed two criminal history points for the 1995 assault, which would not have happened absent a conviction; (3) the sentencing court accepted the presentence report without modification; and (4) Petitioner described the assault case as a "shooting incident", which "constitutes aggressive behavior which is likely to cause serious bodily harm or death and is more serious than the example of 'intimidation involving a weapon' provided in the definition of 'serious history of violence.' " Id. at 4. Since Petitioner's security total of 19 fell within the range of a medium security facility, Miller denied the request to transfer Petitioner to a low security facility. Id. at 4 (citing Ex. A, Ch. 1 at 2). See Dkt. No. 8-1, Ex. D.
Petitioner exhausted his administrative remedies without success. See Dkt. No. 1, Mem. at 2-5; Dkt. No. 8, Resp't ...