Gonzalez v. U.S.

Full title: PEDRO GARCIA GONZALEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, D. South Dakota, Southern Division

Date published: Sep 5, 2008

CIV 08-4102, CR 07-40085 (D.S.D. Sep. 5, 2008)

Opinion

CIV 08-4102, CR 07-40085.

September 5, 2008

MEMORANDUM OPINION AND ORDER

LAWRENCE PIERSOL, Chief District Judge

Petitioner, Pedro Garcia Gonzalez, an inmate at the Northeast Ohio Correctional Center, has filed a Motion to Vacate, Correct or Set Aside Sentence pursuant to 28 U.S.C. § 2255, Doc. 31. Petitioner claims that his Sixth Amendment rights were violated when the court enhanced his sentence based on a previous aggravated felony conviction. Petitioner also claims that his ineligibility to participate in the BOP's Residential Drug Abuse Program ("RDAP") is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. Presumably, there is an INS detainer which prevents his participation in RDAP.

The Motion conclusively shows that Petitioner is entitled to no relief. The Court rejects Petitioner's claim that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a sentencing enhancement based upon a prior criminal conviction, violates Petitioner's Sixth Amendment rights. In Booker, the Court specifically held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum, must be submitted to a jury, and proved beyond a reasonable doubt. Booker, 543 U.S. at 244 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).

No authority exists to support Petitioner's claim that being ineligible to participate in RDAP and thus qualify for early release, constitutes cruel and unusual punishment. To establish a violation of the Eighth Amendment's cruel and unusual punishments clause, a prisoner must show that officials were "knowingly and unreasonably disregarding an objectively intolerable risk of harm" to the prisoners' health and safety. Farmer v. Brennan, 511 U.S. 825, 846, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Petitioner's inability to participate in RDAP and thus qualify for early release certainly does not meet this standard.

Petitioner has also filed an Application to Proceed Without Prepayment of Fees, which the Court construes as a request to proceed in forma pauperis, Doc. 30.

For the foregoing reasons, it is hereby ORDERED:

(1) that the Motion to Vacate, Correct or Set Aside Sentence pursuant to 28 U.S.C. § 2255, Doc. 31, is DENIED.

(2) that the request to proceed in forma pauperis is DENIED as moot.