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


11-6-2007

Elienist v. Sherman
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2861




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Recommended Citation
"Elienist v. Sherman" (2007). 2007 Decisions. Paper 255.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/255


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BLD-8                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-2861
                                      ___________

                                 WILLIAM ELIENIST,
                                             Appellant

                                            v.

                           JAMES SHERMAN, WARDEN
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civil No. 06-CV-00059)
                    District Judge: Honorable Maurice B. Cohill, Jr.
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 12, 2007
               Before: MCKEE, RENDELL and SMITH, Circuit Judges

                           (Opinion filed: November 6, 2007)
                                       _________

                                         OPINION
                                        _________

PER CURIAM

       William Elienist appeals from an order of the United States District Court for the

Western District of Pennsylvania, denying his petition for a writ of habeas corpus filed

pursuant to 28 U.S.C. § 2241, and an order denying his motion for reconsideration.

Because no substantial question is presented by the appeal, we will grant Appellee’s
Motion for Summary Action and will affirm the District Court’s order.

       Elienist, a citizen of the Bahamas, is serving a prison sentence for his drug and

counterfeit currency convictions. Elienist filed a § 2241 petition, arguing that he had

been improperly designated by the Bureau of Prisons (BOP) as a “deportable alien,”

which prevented his transfer to a prison closer to his family in Florida.

       The BOP uses a Security Designation and Custody Classification Manual to aid in

determining inmate placements in federal facilities. The Manual lists nine Public Safety

Factors (PSF) to be applied to inmates who are not appropriate for minimum security

placements. One of the PSFs is the designation “Deportable Alien.” At the time of the

decision Elienist complained of, such a designation was to be applied to an inmate who is

a citizen of a foreign country unless he met each of three criteria. One criterium was that

the inmate document or independently verify a history of stable employment for at least

the three years immediately prior to incarceration; the other two required a verified

history of five or more consecutive years of U.S. domicile and strong family ties.

Program Statement (PS) 5100.07 (effective Sept. 3, 1999-Sept. 12, 2006).

       Before filing his § 2241 petition, Elienist pursued internal prison remedies. In the

Warden’s response to his “Inmate Request to Staff Member,” Elienist was informed of

the three criteria of PS 5100.07, and was advised to address the issue with his “Unit

Team,” which would be responsible for requesting a waiver of the PSF. The response

indicated that Elienist should provide his Unit Team with adequate verification of the

three criteria. Elienist appealed the response, and the Regional Director affirmed, noting

                                              2
that Elienist was “pending participation in the immigration hearing process,” and that his

“deportation status ha[d] not yet been determined.” The Regional Director informed

Elienist that he could submit a transfer request if his status changed. Elienist appealed to

the Administrator of National Inmate Appeals, who found that the “Warden and the

Regional Director adequately responded to the issue you raised in your appeal,” and that

the designation of “Deportable Alien” was appropriate.

       Elienist’s § 2241 petition claimed that the BOP was not following its regulations.

In its response, the respondent noted that Elienist’s presentence investigation report

showed that he had not had stable employment for the three years prior to his

incarceration, and that he thus did not meet one of the criteria that would allow him to

avoid the “deportable alien” designation. In her Report and Recommendation (R&R), the

Magistrate Judge noted that Elienist had not satisfied the three criteria, and stated that the

BOP therefore had correctly designated Elienist as a “deportable alien.” The District

Court, after considering Elienist’s objections and the respondent’s response thereto

adopted the Magistrate Judge’s Report and Recommendation as the opinion of the Court.

       Elienist filed a motion for reconsideration, arguing that the Court had not

considered the “special circumstance” (mentioned in his objections to the R&R) that he

was a juvenile for a portion of the three years before his incarceration, and thus could not

have been expected (or even allowed) to have full-time employment. The District Court

denied the motion for reconsideration, noting that it had already considered Elienist’s

special circumstance argument, and finding that his argument was moot. For the reasons

                                              3
that follow, we agree that Elienist’s claims, which challenge PS 5100.07, are moot.

       In its response to Petitioner’s Objections to the Magistrate Judge’s R&R, the

Warden noted that since the time the § 2241 petition was filed, PS 5100.08 was issued,

superceding PS 5100.07. PS 5100.08 eliminates the three criteria mentioned in PS

5100.07. Elienist’s custody classification was reviewed on October 3, 2006, using the

new Program Statement. The PSF of “deportable alien” was still found to be appropriate

under the new Program Statement. Thus, Elienist’s challenge to the criteria of 5100.07 is

moot. Any challenge to the October 3, 2006 decision would have to be brought in a new

petition, after exhausting administrative remedies.

       For the foregoing reasons, we will affirm the District Court’s order.




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