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Bounthavee Nerasin v. Harley G. Lappin

November 3, 2011

BOUNTHAVEE NERASIN, PETITIONER,
v.
HARLEY G. LAPPIN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge Donald C. Nugent

MEMORANDUM OF OPINION AND ORDER

Before the Court is pro se Petitioner Bounthavee Nerasin's above-captioned habeas corpus action pursuant to 28 U.S.C. § 2241. He names Harley G. Lappin, Director of the Bureau of Prisons (BOP), Corrections Corporation of America ("CCA") President & CEO John D. Ferguson, and Warden Roddie Rushing at the Northeast Ohio Correctional Center (N.E.O.C.C.)*fn1 in Youngstown, Ohio as Respondents. Petitioner, who is incarcerated at N.E.O.C.C., asserts he was impermissibly transferred to a N.E.O.C.C. on the basis of national origin in violation of his Fifth and Fourteenth Amendment rights under the Constitution. For the reasons set forth below, the Petition is denied.

Background

Petitioner pled guilty to illegal use of a communication device in violation of 21 U.S.C. § 843. See United States v. Nerasin, No. 2:08cv0389 (E.D. CA 2008). He was sentenced to 48 months imprisonment. He was relinquished to the custody of the BOP, which classified him as a low security inmate on or about August 25, 2009. On the same date, the BOP transferred him to N.E.O.C.C. allegedly based on his nationality, country of origin and immigration status. Petitioner describes himself as a non-citizen resident of the United States from Laos.

Petitioner alleges N.E.O.C.C. staff advised him that he was transferred to N.E.O.C.C. under on a contractual arrangement between C.C.A. and the BOP, whereby prison transfers were authorized based on national origin, immigration status and low security reclassification. Petitioner asserts this is a violation of his Constitutional rights.

As a result of his transfer, Petitioner raises two grounds for relief; namely, (1) his transfer and "segregation" based on nationality violate the 5th and 14th Amendments of the Constitution; and (2) the contract between C.C.A. and the BOP is illegal, unconstitutional and invalid because it permits unlawful housing of prisoners based on nationality. For relief, he seeks immediate transfer to a BOP facility, an order from this Court directing that all prisoners be treated the same, regardless of nationality or immigrant status and, finally, to declare the CCA/BOP contract null and void.

Analysis

Petitioner claims the Respondents are violation of the BOP policy against discrimination set forth in 28 C.F.R. § 551.90, the Fifth and Fourteenth Amendments of the Constitution, 18 U.S.C. § 242, and 18 U.S.C. § 4001. This is based on his assertion that his immigrant status, nationality, country of origin and race caused the Respondents to treat him differently than other low security prisoners. Moreover, the contract between CCA and the BOP, allegedly allowed him to be placed at N.E.O.C.C. and "segregated" from low security inmates who are United States citizens.

Under18 U.S.C. § 242, Petitioner claims he is entitled to protection from any unconstitutional action taken under color of law.*fn2 In addition, he maintains that the Fifth and Fourteenth Amendments entitle low security, non-citizen inmates to the same treatment as low security inmates who are citizens of the United States. He cites both a Supreme Court case and District Court of the Virgin Islands decision to support his assertion that prisoner segregation by race, national origin or immigrant status violates the Constitution. See Johnson v. California, 543 U.S. 499 (2005); Sailer v. Tonkin, 356 F. Supp. 72 (D.C. VI 1973).*fn3 Unlike Petitioner's pleading, however, neither Johnson nor Tonkin was filed as a habeas petition.

Petitioner concludes his Petition with a general statement that "[a]liens are denied of [sic] beneficial incentives such as Release preparation Program, Drug and alcohol abuse program, Pre-release community corrections Center Half-way-house program pursuant to [BOP] . . . policy and procedure, the Second Chance Act . . . and 18 U.S.C. § 3624(c)(2)." (Pet. at 11.) There is no allegation, however, that Petitioner was eligible for any of these programs or that his request to participate was denied by the BOP.

In his "Conclusion" paragraph, Petitioner draws the Court's attention to Thanthavongsa v. Lappin, No. 09-3243, slip op. at 2 (6th Cir. Apr. 25, 2011), a recently unpublished opinion issued by the Sixth Circuit Court of Appeals. In Thanthavongsa, the Sixth Circuit held that the district court erred in holding that an alien could not raise an equal protection claim in a habeas petition. The Sixth Circuit stated: "Thanthavongsa alleged more than a simple prison transfer, and his claim is cognizable under § 2241. Although the respondents claim that Jalili [925 F.2d 889 (6th Cir. 1991)] has been called into doubt, we are bound to apply controlling precedent unless that precedent is overruled by the Supreme Court or by this court sitting en banc." Id.(citation omitted).

Federal Habeas Petitions

28 U.S.C. § 2241

Section 2241 in Title 28 of the United States Code provides, in ...


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