Montalvo v. Snyder
| Decision Date | 28 May 2002 |
| Docket Number | No. CIV.A. 01-CV-420-KKC.,CIV.A. 01-CV-420-KKC. |
| Citation | 207 F.Supp.2d 581 |
| Parties | Antonio MONTALVO, Plaintiff, v. George E. SNYDER, Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
Antonio Montalvo, Manchester, KY, pro se.
Marianna Clay, U.S. Attorney's Office, Lexington, KY, for defendant.
This matter is before the Court upon the defendant's motion, by counsel, to dismiss or for summary judgment [Record No. 17]; the plaintiff has filed several responses [Record Nos. 19, 20, 22]; and the defendant has submitted a reply [Record No. 21].
On October 16, 2001 Antonio Montalvo, incarcerated in the Federal Correction Institution in Manchester, Kentucky, filed the instant action pro se; he was later granted permission to proceed in forma pauperis and has been making periodic payments toward the district court filing fee. The plaintiff has claimed that the Bureau of Prisons ("BOP") has wrongly applied a sexual offender classification to him and thus subjected him to the requirement that authorities be notified prior to his release. This sex offender designation also violates his rights under the United States Constitution, including (1) due process guarantees; (2) the prohibition against double jeopardy; and (3) the Ex Post Facto Clause.
As to his pertinent background, the plaintiff explains that he is in federal custody after pleading guilty to being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1), in the United States District Court for the Northern District of Illinois, and was sentenced to 87 months' imprisonment on April 13, 2000. Once in custody for service of the sentence, Montalvo was classified as a sex offender based upon a prior Illinois conviction, not his current offense, an application which he challenges herein. Attachments reveal that the sexual offense of which he was convicted was Criminal Sexual Abuse; he pled guilty to the charge in Cook County Circuit Court, Case No. 90-310515, in 1990, when he was 18 years of age; and he was sentenced to one year of supervision.
As to his legal claims, prior to bringing the instant lawsuit, the plaintiff pursued the BOP's administrative process to exhaustion. The BOP's position was that (1) the application of a Sex Offender Public Safety Factor to him is required under BOP Program Statement ("P.S.") 5100.07, Security Designation and Custody Classification Manual, regardless of whether the sexual conduct was related to his instant or a prior offense, if the behavior was aggressive or abusive in nature; and his conviction for criminal sexual abuse in 1990 calls for the application. Also, (2) as to the notification of authorities prior to his release, the BOP's position was that P.S. 5141.02, Sex Offender Notification and Registration, was issued to comply with a 1996 federal law, 18 U.S.C. § 4042(c), requiring the notification of authorities prior to the release of those who have been convicted of certain sexual offenses; and its application to him is also required because the criminal sexual abuse conviction is an offense which falls under the statute. The response at the final level of appeal concludes that the BOP's classification decision is appropriate, notification of release is required under the federal statute, and there is no violation of the Ex Post Facto Clause.
The plaintiff's attachments included copies of two articles discussing cases in support of his Ex Post Facto claim, Henrikson v. Guzik, 249 F.3d 395 (5th Cir.2001) and Doe v. Otte, 259 F.3d 979 (9th Cir. 2001), the courts therein granting prisoners relief from the notice requirements imposed by the recent law on Ex Post Facto grounds, because their qualifying offenses were committed prior to the effective date of the law. Additionally, the plaintiff later submitted a copy of United States v. Schulte, 264 F.3d 656 (6th Cir. 2001) (). Record No. 4.
By order of January 7, 2002, this Court directed that summons issue on the plaintiff's construed complaint, as amended [Record Nos. 1, 4]. On March 26, 2002, after being granted an extension of time, the defendant responded with the instant motion.
The defendant has submitted a memorandum attached to the instant motion [Record No. 17] to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment pursuant to Rule 56(b) and (c). He begins therein with a recitation of the facts, with a supporting affidavit of a senior attorney with the government, Kevin J. Walasinski, who also swears to the authenticity of the exhibits attached to his declaration. These documents include a summary of the plaintiff's criminal history and current status with a release date of April 11, 2005 (Exhibits A-B); copies of the relevant Program Statements, 5100.07 and 5141.02 (Exhibits C-D); and the documents exchanged as the plaintiff exhausted the BOP administrative process (Exhibits G-I).
The defendant then sets forth the provisions of 18 U.S.C. § 4042 and its direction to the BOP to apply the sex offender notification-prior-to-release requirement to any inmate convicted of any of the specifically enumerated offenses or "any other offense designated by the Attorney General as a sexual offense for purposes of this subsection." 18 U.S.C. § 4042(c)(4). The BOP formally promulgated 28 C.F.R. § 571.72 to define the other offenses, one of which is an offense in any jurisdiction that involved "sexual contact with another person without obtaining permission to do so (forcible rape, sexual assault, or sexual battery)...." 28 C.F.R § 571.72(a)(1). Since Montalvo's conviction was for criminal sexual abuse, a sexual offense under 28 C.F.R § 571.72(a)(1), his classification under P.S. 5100.07 and the application of the notification provisions of P.S. 5141.02 are appropriate.1
As to the constitutional claims asserted by the plaintiff, the defendant argues that there is no violation of the Double Jeopardy Clause, pointing to the United States Supreme Court's two-step analysis of such claims in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) and its scrutiny therein of the relevant factors in an earlier decision, Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Applying these cases to the instant facts, the defendant contends that this Court should conclude that there is no double jeopardy violation. Additionally, this Court's conclusion about the constitutionality of the statute and its application would be consistent with the holding of the United States Court of Appeals for the Sixth Circuit in upholding the similar Tennessee Sex Offender Registration and Monitoring Act to a double jeopardy attack, in Cutshall v. Sundquist, 193 F.3d 466 (6th cir.1999), cert. denied, 529 U.S. 1053, 120 S.Ct. 1554, 146 L.Ed.2d 460 (2000).
With regard to the alleged violation of the prohibition against Ex Post Facto laws, the defendant notes that even though the federal statute herein does not require registration (only notification of an inmate's release to state authorities), still the majority of cases addressing the registration laws have been upheld. He again cites to Cutshall on this issue and distinguishes the plaintiff's Otte case factually. The defendant points out that the same federal statute and policy statement challenged herein were upheld by another judge in this Court in an unpublished April 18, 2001 decision in Napoleon Crawford v. Edward Peres, Ashland Civil Action No. 01-16, the Honorable Henry R. Wilhoit, Jr., presiding. As therein, the defendant urges this Court to find that the statute is not punitive; nor does it change the definition of criminal conduct. Therefore, there is no Ex Post Facto violation.
Finally, the defendant contends that there is also no due process violation because no liberty interest is implicated. He urges the Court to reject this due process challenge also, again relying upon Cutshall and another case he had mentioned earlier, Diaz v. Olsen, 110 F.Supp 2d 295, 302 (D.N.J.2000).
For some reason not clear on the face of the pleadings, the plaintiff originally filed two responses [Record Nos. 19-20] to the defendant's motion. They appear to be identical.
The plaintiff urges the Court to deny the plaintiff's motion on the ground that the Court is required to view the evidence in the light most favorable to him, the nonmoving party, and he presents the following factual issue in his favor: He had the purported victim's permission to have sex with her, and the defendant knew that he had her permission when he classified the plaintiff as a sex offender.
The plaintiff points to the federal court's Presentence Investigation Report, which he attached to his complaint and which contains his admission upon being processed with four other accused offenders, "We were all fucked up and this broad came up to me naked and said `I want to fuck you,' so I took her in a room and fucked her." Record No. 1, Attachment at page 5, line 127-28. The defendant not only claims that he had sex with her by request, he contends that he had permission "to even treat her unfairly or harshly." Additionally, he claims that he entered a nolo contendere type plea; and he agreed to the plea only because the victim's age was "under that of legal consent," and the victim's mother brought the charges because she was angry that her daughter had become intoxicated on alcohol and drugs and then had sex with multiple males.
The plaintiff asks that the Court deny the defendant's motion or grant him an extension of 30 days in which to obtain exculpatory evidence from the Illinois court to put into the instant record about the consensual nature of his sex with the victim...
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Simmons v. Nash
...two out-of-circuit district court decisions in which challenges similar to that of Petitioner's were dismissed. In Montalvo v. Snyder, 207 F.Supp.2d 581, 582 (E.D.Ky.2002), the petitioner claimed that the BOP "wrongly applied a sexual offender classification to him." The petitioner was serv......
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Montalvo v. Snyder.
...District Court SEX OFFENDERS Montalvo v. Snyder, 207 F.Supp.2d 581 (E.D.Ky. 2002). A prisoner sued the federal Bureau of Prisons claiming that he was wrongfully classified as a sexual offender and subjected to a statutory requirement that authorities be notified prior to his release. The di......