Free Response to Habeas Petition - District Court of Delaware - Delaware

Case 1:04-cv-01446—Gl\/IS Document 11-4 Filed 04/19/2005 Page 1P§£¢32 Otel

2000 WL 1876439 Page 1
2000 WL 1876439 (D,Del.)
(Cite as: 2000 WL 1876439 {D.Del.)l
Only the Westlaw citation is currently available. probation is only available for a Level ll or
Level I sanction.
United States District Court, D. Delaware, 1. Two Motions to Amend Habeas Petition
(D.l.l9, 20).
Michael E. OBERLY, Petitioner, 2, Motion for the Appointment of Counsel
v. (D.1.6).
Richard KEARNEY, Warden, et Respondent, 3. Motion for Release Pending Review of
Michael E. OBERLY, Petitioner, Decision (0,1.24).
v.
Rick KEARNEY, Warden, and M. Jane Brady, Respondents have moved to dismiss the petition on
Attorney General ofthe State of the ground that the petitioner has improperly
Delaware, Respondents. classified the action as a writ of habeas corpus when
in fact it should have been tiled as a civil rights
No. Civ.A.99-480-GMS. claim under 42 U.S.C. § 1983. [FN2]
Dec.l5, 2000. FN2. 42 U.S.C, § 1983 states: "Every
person who, under color of any statute,
Michael Oberly, Petitioner, pro se. ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Thomas Brown, Department of Justice, Columbia, subjects, or causes to be
Wilmington, DE, for Respondent. subjected, any citizen of the United States
or other person within the Jurisdiction
MEMORANDUM AND ORDER thereof to the deprivation of any rights,
privileges, or immunities secured by the
SLEET, J. Constitution and laws, shall be liable to the
party injured in an action at law, at equity
*1 The petitioner, Michael E. Oberly ("Oberly"), is or other proper proceeding for redress."
presently incarcerated at the Sussex County
Correctional Institute ("SCCI") located in For the reasons set forth below, the court will
Georgetown, Delaware. Respondents Rick Kearney dismiss Oberly's petition. [FN3] Petitioner's
and M. Jane Brady are respectively the Warden of motions to amend and for appointment of counsel
SCC! and the Attorney General of the State of will be dismissed as moot. His motion for release
Delaware. Oberly has filed a habeas petition with pending review under Fed. R.App. P. 23(c) will be
this court challenging his continued confinement at dismissed as well since the rule is inapplicable to
"Level V" and alleging that he is entitled to this case and, in any event, is also moot. [FN4]
placement at either "Level Ill" or "Level IV"
(DLI). [FN1] The petitioner has also filed the FN3. If a prisoner seeks habeas corpus
following motions with the court: relief when he should have brought a civil
rights action, the court has discretion to -
FN1. See ll Del. C. § 4204(c)(3)—(5). either grant the prisoner leave to tile an
Generally, Level III involves intensive appropriate pleading or to simply ignore
supervision or community service, Level the mislabeling and treat the petition as a
IV requires partial confinement under civil rights complaint. See Graham v.
house arrest or to a halfway house, and Broglrn, 922 F.2d 379, 381 (7th Cir.199l),
Level V requires incarceration. Supervised Because of problems of extrapolation, the
Copr, © 2004 West, No Claim to Orig. U.S. Govt. Works,
Ex. C!
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2000 WL 1876439 Page 2
2000 WL 1876439 (D.Del.)
(Cite as: 2000 WL 1876439 (D.DeI.))
court declines to re-characterize OberIy's constitutional challenge to the conditions of his
petitionasacivil rights complaint. confinement, but not to the fact or length of his
custody. See Preiser v. Rodriguez, 411 U.S. 475,
FN4. Fed. R.App. P. 23(c) states "While a 499 (1973); (rcaffirming cases that establish § 1983
decision ordering the release of a prisoner as proper remedy for state prisoner challenging
is under review, the prisoner must--unless conditions of prison life but not fact or length of
the court or judge rendering the decision, custody)? Wright v. Cuyler, 624 F.2d 455 (3rd
or the court of appeals, or the Supreme Cir.l980) (stating that gaining admission to the
Court, or a judge or justice of either court home furlough program was a condition of a
orders otherwise—be released on personal prisoner's confinement which can only be
recognizance, with or without surety." This challenged by way of civil action); cf Heck v.
rule govems the procedure of processing Humphrey, 512 U.S. 477, 486-89 (1994) (holding
appeals to a United States court of appeals that claims challenging length of sentence or fact of
from the United States district court. Since conviction are only cognizable under § l983 unless
Oberly‘s petition is not currently under and until conviction or sentence is reversed,
appellate review, this court is not bound by expunged, invalidated or impugned by grant of writ
the rule. of habeas corpus).
*2 lf the prisoner is seeking what can fairly be
In June, 1997, Oberly pled guilty in the Superior described as a quantum change in the level of
Court of Delaware to driving under the influence, custody--whether outright freedom, or freedom
offensive touching, and failing to stop. Oberly did subject to the limited reporting and financial
not appeal these convictions. On February 20, 1998, constraints of bond or parole or probation, or the
the Superior Court found him guilty of violating his run of the prison in contrast to the approximation
probation and sentenced him to five years at Level to solitary confinement that is disciplinary
V, with transfer to Level lll or Level IV upon segregation--then habeas corpus is his remedy.
completion of a substance abuse treatment program. But, if he is seeking a different program or
[FNS] Again, Oberly did not appeal the Superior location or environment, then he is challenging
Court's decision. the conditions rather than the fact of his
confinement and his remedy is under civil rights
FNS. See Pet. Ex. A, Sentencing Tr. Feb. law ....
20,1998 atll-14. Graham, 922 F.2d at 38l; see also Falcon v.
United States Burecru of Prisons, 52 F.3d 137 (7th
Since his incarceration, Oberly has completed the Cir.l995). ln Graham, the court held that the
"New Hope" drug and alcohol treatment program, appropriate vehicle to challenge the prison‘s denial
the "New Insights" program, the "12 Step Group of of a work release application was by way of a civil
Chemically Dependent Anonymous" program, and rights action rather than a habeas petition. See
the "Anger Management Group" program. [FN6] Graham, 922 F .2d at 381. Even though a prisoners
Oberly asserts that these certifications warrant his total number of days actually spent behind bars can
transfer to Level III or Level IV as per his sentence. technically be reduced by the number of days
lt appears from his petition that Oberly claims he during which he is out of prison on fiirloughs, it
properly filed an application for a writ of habeas cannot be said that occasional short furloughs
corpus under 28 U.S.C. § 2254 since he is reduce the actual duration of his confinement. See
challenging the duration of confinement rather than Jamieson v. Robinson, 64I F.2d 138 (3d Cir.I98l)
the conditions of his confinement. (finding that prisoner who was denied acceptance to
a work release program sought only to alter
FN6. Oberly attached Certificates of conditions of confinement and, therefore, did not
Completion for these programs to his sound chiefly in a habeas action); Wright, 624 F.2d
second Motion to Amend. at 458-59 (holding that failure of prisoner to gain
admission to home tiirlough program was condition
An action under 42 U.S.C. § 1983 is the proper of confinement properly challenged under § 1983
remedy for a state prisoner who wishes to mount a rather than via writ of habeas corpus).
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Case 1:04-cv-O1446—Gl\/IS Document 11-4 Filed O4/19/2005 Page Cppé€34 mc,4
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2000 WL 1876439 (D.De1.)
(Cite as: 2000 WL 1876439 (D.DeI.))
A claim that a prisoner is entitled to work release Because this petition is properly characterized as a
or home fiirlough is properly characterized as a civil 42 U.S.C. § 1983 action, the petitioner has failed to
action because, if successful, it merely changes the state a claim which provides a basis for federal
location where the sentence is to be served. See habeas relief
Graham, 922 F .2d at 381. Whether a prisoner
works in a factory within the prison system or in the For the above reasons, IT IS HEREBY ORDERED
outside world is more a difference in location as that:
opposed to a difference in the level of confinement. *3 I. Oberly‘s petition for a writ of habeas corpus
See Falcon, 52 F.3d at 137. (D.I. 1) is DISMISSED without prejudice.
2. Oberly's motions to amend (D.I.l9, 20) are
Oberly has not challenged the fact of his sentence DISMISSED as moot.
or the length of time which he must serve. He is not 3. Oberly's motion for appointment of counsel
claiming that he is entitled to immediate or speedier (D.I.6) is DISMISSED as moot.
release from confinement. Nor would the relief he 4. Oberly‘s motion for release pending review
has requested diminish the overall length of his [D.I.24) is DISMISSEDa.smoot.
incarceration since Oberly is required to serve five 5. Oberly is GRANTED leave to file a claim
years regardless of whether it is at Level V, Level under 42 U.S.C. § 1983 based on allegations as
IV, or Level III supervision. [FN7] The sentencing stated in his petition for a writ of habeas corpus
judge‘s statement that Oberly be transferred from (D.I.l).
Level V to Level IV or Level III is not a quantum
change in the level of custody sufficient to make the 2000 WL 1876439 (D.Del.) ‘
issuance of a writ of habeas corpus the proper
remedy for relief since, at minimum, Oberly would END OF DOCUMENT
still be subject to intensive supervision. [FNS]
FN7. Oberly's probation was revoked and
the original sentence of tive years was
reinstated. Although the judge stated that
Oberly‘s participation and completion of
certain programs would result in a transfer
to Level IV or Level III, he did not Suggest
that 0berly’s sentence would be reduced or
that he would be placed on supervised
probation.
FNS. The sentencing judge did not
indicate whether Oberly should be moved
to Level III or Level IV and Oberly does
not claim he should be moved a specific
Level. A move to Level IV would certainly
not be a quanttmi change since Level IV
requires partial confinement or house
arrest. A move to Level III would similarly
not be a quantum change since it requires
intensive supervision or community
service. The court need not decide whether
Level II, which allows for supervised
probation, constitutes a quantum change in
the level of confinement since Oberly does
not claim he should be moved to this level
ofsupervision.
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