Yosef v. Killian

• Decision Date: 04 August 2009
• Docket Number: No. 08 Civ. 11086(SHS)(FM).,08 Civ. 11086(SHS)(FM).
• Citation: 646 F.Supp.2d 499
• Parties: Ofer YOSEF, Petitioner, v. Janice KILLIAN (Warden), et al., Respondents.
• Court: U.S. District Court — Southern District of New York

646 F.Supp.2d 499

Ofer YOSEF, Petitioner, v. Janice KILLIAN (Warden), et al., Respondents.

No. 08 Civ. 11086(SHS)(FM).

United States District Court, S.D. New York.

August 4, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ofer Yosef, Otisville, NY, pro se.

ORDER

SIDNEY H. STEIN, District Judge.

In a Report and Recommendation dated June 25, 2009, Magistrate Judge Frank Maas recommended that the petition for a writ of habeas corpus be denied. After a de novo review of (1) Magistrate Judge Maas' Report and Recommendation, (2) petitioner's objections dated July 8, 2009 to the Report and Recommendation, (3) respondents' letter dated July 23, 2009 in response to petitioner's objections, (4) a letter dated July 23, 2009 from Michael Rosenberg is support of petitioner; and (5) petitioner's letter dated July 28, 2009 in reply to respondents' July 23 letter,

IT IS HEREBY ORDERED that:

1. Magistrate Judge Maas' "Report and Recommendation" is adopted;

2. The petition pursuant to 28 U.S.C. § 2241 is dismissed;

3. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.2007); and

4. Pursuant to 28 U.S.C. § 1915(a) the Court certifies that any appeal from this Order would not be taken in good faith.

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE SIDNEY H. STEIN AND ORDER

FRANK MAAS, United States Magistrate Judge.

I. Introduction

Petitioner Ofer Yosef ("Yosef") is serving a 152-month sentence at the Federal Correctional Institution at Otisville, New York ("FCI-Otisville"). He brings this habeas corpus proceeding, pursuant to 28 U.S.C. § 2241 ("Section 2241"), to challenge the denial of his request to be transferred to Israel, his country of citizenship, in accordance with the Transfer of Offenders to or from Foreign Countries Act, 18 U.S.C. § 4100 et seq. ("Act").

In his petition ("Petition" or "Pet."), Yosef contends that the Act and its implementing regulations are void for vagueness, and that the denial of his request for transfer was improperly "capricious and subjective." (Pet. ¶ 12(A), (B)). He further asserts that he is entitled to specific performance by the United States under the transfer provisions of the Act. (Id. ¶ 12(C)). Finally, Yosef alleges that his detention in a country other than that of his citizenship amounts to cruel and unusual punishment in violation of the Eighth Amendment because he has been isolated from his family, friends, and community. (Id. ¶ 12(D)).

For the reasons set forth below, the Petition should be denied.

II. Background

On October 22, 2003, after a jury trial in the United States District Court for the Eastern District of New York, Yosef was convicted of one count of conspiracy to commit wire fraud, two counts each of extortion by interstate communications and making false statements, and four counts of wire fraud. (See Ex. 1 at 1).¹ He was sentenced to 151 months of imprisonment. (Id. at 2). On September 13, 2004, the Second Circuit affirmed his conviction, which arose out of the operations of a moving and storage company. (Pet. ¶ 9; Exs. 6, 7).

On January 12, 2004, in the Eastern District, Yosef entered a plea of guilty, apparently in an unrelated case, to one count of attempted fraudulent use of an alien registration card. (Ex. 2 at 1). He was sentenced to seven months of imprisonment, six of which were to run concurrently with his previous sentence. (Id. at 2). Assuming he receives projected goodtime credits, Yosef could be released as early as January 1, 2014. (See Resp't's Mem. at 3).

On November 17, 2005, Yosef submitted to the Federal Bureau of Prisons a Transfer Inquiry form in which he indicated that he wished to be transferred to Israel to serve the remainder of his sentence. (Ex. 3). Accordingly, Yosef's case manager at FCI-Otisville compiled a case summary outlining such information as his marital status, employment, educational, and criminal history, prison behavior, and medical and psychological condition. (Ex. 4). The case manager sent the case summary to the International Prison Transfer Unit ("IPTU") at the United States Department of Justice. (See Return ¶ 5).²

After reviewing Yosef's case, the IPTU advised the Israeli Ministry of Justice, by letter dated June 13, 2006, that the United States had denied Yosef's transfer request. (Ex. 5). The letter stated that the denial was based on "the seriousness of the offense[s], . . . [Yosef's] fraudulent conduct[,] . . . [his] use [of] a fraudulently obtained alien registration card . . . [, and his] poor rehabilitative potential in light of his obstruction of justice and misconduct in prison." (Id.).³ The IPTU noted that there was no avenue of administrative appeal from the decision, but that Yosef could reapply for transfer in two years. (Id.).

On April 8, 2008, Yosef's counsel, herself a former chief of the IPTU, reapplied for his transfer to Israel. (Ex. 6; Reply Ex. G). On May 19, 2008, the IPTU completed an addendum updating Yosef's prior case summary. (Ex. 7). The addendum noted that Yosef had been the subject of five incident reports which resulted in the forfeiture of a total of 81 days of good time. (Id. at 3). Thereafter, by letter dated May 21, 2008, the IPTU advised the Israeli Ministry of Justice that Yosef's transfer request again had been denied because of the seriousness of the offense, but that he could reapply and might be viewed more favorably if his prison disciplinary record improved. (Ex. 8). Yosef also indicates that he requested transfer on at least three additional occasions. (Reply at 8).

Yosef's pro se petition for a writ of habeas corpus is dated November 17, and was filed on December 22, 2008. (See Docket No. 1). The matter subsequently was referred to me for a Report and Recommendation on January 7, 2009. (Docket No. 2).⁴

III. Discussion

A. Applicable Law

Under Section 2241, a petitioner is entitled to habeas relief if he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A petition under Section 2241 consequently may address issues related to prison transfers. Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir.2008).

This proceeding concerns a proposed international prison transfer. Such transfers between the United States and foreign nations are governed by the Act, which provides that, pursuant to a treaty, the Attorney General may "transfer offenders under a sentence of imprisonment . . . to the foreign countries of which they are citizens or nationals" and "make regulations for the proper implementation of such treaties . . . and to implement [the Act]." 18 U.S.C. §§ 4102(3), (4).

Significantly, the Act applies "only when a treaty providing for such a transfer is in force." 18 U.S.C. § 4100(a). Here, the United States and Israel are parties to such a multilateral transfer treaty, namely, the Convention on the Transfer of Sentenced Persons, Mar. 21, 1983, T.I.A.S. No. 10,824, Europ. T.S. No. 112 ("Convention"). The Convention entered into force for the United States in 1985 and for Israel in 1998. See Council of Europe, Convention on the Transfer of Sentenced Persons, http://conventions.coe.int/Treaty/ Commun/ChercheSig.asp?NT=112&CM = 8&DF=&CL=ENG (last visited June 24, 2009).

Under the Convention, an offender "may be transferred" to another signatory state to serve his sentence, and "may express his interest" in such a transfer. Convention, Art. 2(2) (emphasis added). A transfer can occur, however, only if a series of conditions are met, one of which is that "the sentencing and administering States agree to the transfer." Id. Art. 3(1)(f).

The Convention does not outline any criteria that a state must consider in deciding whether to approve an international transfer. Similarly, although the Act authorizes the Attorney General, acting on behalf of the United States, to transfer offenders, it does not contain any limits on the exercise of the Attorney General's discretion. 18 U.S.C. §§ 4102(1), (3).

B. Yosef's Claims

In his Petition, Yosef first asserts that 18 U.S.C. § 4100(b) and the regulations promulgated pursuant thereto, 28 C.F.R. §§ 527.40-527.44, are void for vagueness. (Pet. ¶ 12(A)). In that regard, he further alleges that he "has been denied transfer . . . for subjective reasons not contemplated by law or by congressional intent," even though he has complied with the criteria promulgated in the "applicable code sections." (Id.).

Yosef next claims that the Respondents "have failed to promulgate specific rules so that an ordinary person may comply with criteria for [t]reaty [transfer]." (Id. ¶ 12(B)). He also asserts, with respect to this claim, that the Respondents actions are "capricious and subjective in that they routinely grant treaty transfers to [o]ffenders and deny such to others without consistency," and that they also have not provided a right to appeal from their decisions. (Id.).

Additionally, Yosef contends that he is entitled to specific performance by the United States of the transfer provisions of the Act. (Id. ¶ 12(C)). In connection with this claim, he alleges that the Convention and Act provide greater protection for United States citizens who seek to be repatriated to this country than it does for foreigners incarcerated here who seek to be sent to their home countries. (Id.). According to Yosef, "the rules as promulgated" nevertheless require his transfer. (Id.). He contends that the Respondents therefore should be compelled to comply. (Id.).

Finally, Yosef argues that the denial of his transfer requests amounts to cruel and usual punishment because he has not been able to visit with his wife, child, or parents. (Id. ¶ 12(D)). He contends that the disparity between his ability to have contact with his family, friends, and community and that of non-foreign prisoners is unconstitutional. (...