JOHN WHALEY v. PLILER (2023)

REPORT & RECOMMENDATION

Petitioner John Whaley, currently incarcerated at FCI Otisville in Otisville, New York, has brought this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.¹ For the following reasons, the petition should be denied.

I. BACKGROUND

A jury convicted Whaley on May 26, 2011 of one count of “conspiracy to commit sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. §§ 371 and 1591(a) (2000)”; one count of “conspiracy to commit sex trafficking in violation of, inter alia, 18 U.S.C. §§ 1594(c) and 1591(a) (2009)”; one count of “conspiracy to commit forced labor in violation of, inter alia, 18 U.S.C. §§ 371 and 1589 (2000)”; one count of “conspiracy to commit forced labor in violation of, inter alia, 18 U.S.C. §§ 1589(d) and 1594(b) (2009)”; four counts of “forced labor in violation of, inter alia, 18 U.S.C. § 1589 (2009)”; one count of “conspiracy to transport and harbor aliens in violation of, inter alia, 8 U.S.C. § 1324(a)(1)”; five counts of “transportation of aliens within the United States in violation of, inter alia, 8 U.S.C. § 1324(a)(1)”; and five “counts of alien harboring in violation of, inter alia, 8 U.S.C. § 1324(a)(1).” United States v. Rivera, 2013 WL 2627184, at *1 (E.D.N.Y. June 11, 2013), aff'd, 799 F.3d 180 (2d Cir. 2015).

“Whaley was sentenced principally to 25 years’ imprisonment on his sex trafficking conspiracy count, and two terms of ten years’ imprisonment on his remaining counts, all to run concurrently.” United States v. Rivera, 758 F. App'x 148, 150 (2d Cir. 2018). Whaley is in the custody of the Federal Bureau of Prisons (“BOP”) and is incarcerated in FCI Otisville. See Pet. ¶¶ 3-4. BOP computed his sentence “as commencing on June 12, 2013 (the date he was sentenced), with 1,402 days of prior custody credit and 1,350 days of good conduct time (“GCT”).” Kelly Decl. ¶ 5. BOP projected his release date, “via GCT release,” as November 28, 2030. Id.

Whaley has brought this petition challenging various matters relating to the execution of his sentence and to the circumstances of his confinement. See Pet; Supp. Pet.

II. LEGAL STANDARD

A. 28 U.S.C. § 2241

A court may grant a writ of habeas corpus under 28 U.S.C. § 2241 where a prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.” See § 2241(c)(3). As the Second Circuit has noted:

A challenge to the execution of a sentence—in contrast to the imposition of a sentence—is properly filed pursuant to § 2241. See Chambers[ v. United States, 106 F.3d 472, 474 (2d Cir. 1997)]. Execution of a sentence includes matters such as “the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir.2001) (emphasis added); see also Poindexter v. Nash, 333 F.3d 372, 377 (2d Cir.2003); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001); Chambers, 106 F.3d at 473–75; Boudin v. Thomas, 732 F.2d 1107, 1112 (2d Cir.1984). This distinction between sentence validity and sentence execution is grounded in the plain language of the more specific statute, § 2255, which does not recognize challenges to the manner of carrying out a prisoner's sentence. See United States v. Addonizio, 442 U.S. 178, 186–87, 99 S. Ct. 2235, 60 L.Ed.2d 805 (1979).

Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006) (emphasis in original); accord Dhinsa v. Krueger, 917 F.3d 70, 81 (2d Cir. 2019) (“To challenge ‘the execution of a sentence,’ including challenges to disciplinary actions, prison conditions, or parole decisions, ․ an application under 28 U.S.C. § 2241 provides the ‘proper means.’ ”) (quoting Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004)).

Where a section 2241 petition challenges the conditions of the petitioner's confinement, “the relevant inquiry is whether the conditions in which the inmate is being housed violate the Eighth Amendment's prohibition against cruel and unusual punishment.” Tashbook v. Petrucci, 2022 WL 884974, at *3 (S.D.N.Y. Mar. 25, 2022); accord Fernandez-Rodriguez v. Licon-Vitale, 470 F. Supp. 3d 323, 348 (S.D.N.Y. 2020) (for convicted prisoners bringing a section 2241 petition, the “Eighth Amendment ․ govern[s] the inmates’ claims of unconstitutionality”); see generally H'Shaka v. O'Gorman, 444 F. Supp. 3d 355, 371 (N.D.N.Y. 2020) (Eighth Amendment governs “claims of unconstitutional conditions of confinement and deliberate indifference to [an inmate's] medical needs”).

Finally, “federal prisoners must exhaust their administrative remedies prior to filing a petition for habeas relief,” Carmona, 243 F.3d at 634; accord McPherson v. Lamont, 457 F. Supp. 3d 67, 75 (D. Conn. 2020) (citing cases), unless exhaustion can be excused, see Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003), as amended (July 24, 2003). Exhaustion “requires compliance with the BOP's four-step Administrative Remedy Program.” Lallave v. Martinez, 2022 WL 2338896, at *8 (E.D.N.Y. June 29, 2022) (citing 28 C.F.R. § 542.10(a)).

B. Pro Se Litigants

“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted); accord McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (A pro se party's pleadings should be construed liberally and interpreted “to raise the strongest arguments that they suggest[.]”) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). “[D]ue to the pro se petitioner's general lack of expertise, courts should review habeas petitions with a lenient eye.” Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983); accord Matias v. Artuz, 8 F. App'x 9, 11 (2d Cir. 2001). “However, that a party proceeds pro se ‘does not exempt [the] party from compliance with relevant rules of procedural and substantive law.’ ” DeLeon v. Dunaway, 2022 WL 3902734, at *1 (S.D.N.Y. Aug. 30, 2022) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

III. DISCUSSION

Whaley's challenges are all cognizable on habeas review under 28 U.S.C. § 2241 inasmuch as they relate to his confinement, to his classification within the BOP system, and to a post-release requirement. See Pet.; Supp. Pet. We address each next.

A. BOP's Classification of Forced Labor as a Crime of Violence

Whaley contends that a BOP document entitled BOP Program Statement (“P.S.”) 5162.05, improperly categorizes his conviction as being for a “crime of violence,” Pet. ¶ 6, 8, and as a result BOP has “denie[d] him opportunities to participate in BOP programs [and] incentives[,] including, but not limit[ed] to being in a minimum facility” and earning “extra time credits under the First Step Act of 2018.” Id. ¶ 9; see Categorization of Offenses, annexed as Exhibit A to Stokes Decl. (Docket # 20-1) (“P.S. 5162.05”),

P.S. 5162.05 identifies itself as a document whose purpose is to implement “various Federal Bureau of Prisons policies and programs.” P.S. 5162.05 at 1. It contains a list of offenses that constitute “violent crime[s]” and includes in this list “forced labor,” under 18 U.S.C. § “1589(1) & (2).” See id. at 5. “All Cases” falling within any of the statutes listed are considered crimes of violence. Id. at 2 (emphasis in original). Whaley contends that this categorization is incorrect because some subsections of the forced labor statute, 18 U.S.C. § 1589, in fact do not require proof of violence at all. Pet. ¶ 11.

The Government's response to this argument largely avoids addressing the text of P.S. 5162.05. Instead, it offers the affidavit of a regional “Correctional Programs Administrator” who asserts that the listing “includes forced labor convictions that were committed by violent means.” Stokes Decl. ¶ 3 (emphasis added). The Government asserts that a conviction for forced labor is a crime of violence “where” (presumably meaning “only where”) “the crime was committed by violent means.” Opp. at 11.

In other words, the Government does not offer any opposition to petitioner's contention that a conviction under the forced labor statute is not enough by itself to constitute a crime of violence. Thus, the Government apparently concedes that if all “forced labor” convictions are subsumed in P.S. 5162.05, the P.S. is overbroad.

While the Government seems to avoid addressing the question directly, see Opp. at 4 n.2, we conclude that — even without the Government's apparent concession — P.S. 5162.05 can only be read to categorize a conviction under 18 U.S.C. § 1589 as a crime of violence when the act has been committed with violent means. We reach this conclusion because the listing in P.S. 5162.05 specifically limits § 1589 convictions to those under § “1589(1) and (2).” P.S. 5162.05 at 5.

The Government correctly notes that there currently are no subsections numbered “1589(1)” or “1589(2).” Opp. at 4 n.2. Indeed, as of the date of P.S. 5162.05, March 16, 2009, the forced labor statute did not have a section “1589(1)” or “1589(2).” However, § 1589 did have those subsections in the version that existed approximately 3 months before P.S. 5162.05 had been issued. Specifically, when the statute was first enacted in 2000 and up until December 23, 2008, § 1589 had subsections identified as “1589(1)” and “1589(2).” Those subsections indeed referred to sections involving violence — that is, offenses involving threats of “serious harm” or “physical restraint.”² In other words, if P.S. 5162.05 is construed as referring to conduct coming within those subsections, it appropriately identifies convictions that could be said to involve a “crime of violence.”

On December 23, 2008, the statute was reworded to be in the form as it exists today. See Pub L. 110-457, Title II, § 222(b)(3), Dec. 23, 2008, 122 Stat. 5068. Notwithstanding this amendment, it is clear that P.S. 5162.05 intended to refer to the prior version of the statute and properly limited its effect to convictions under subsections that involved threats of serious harm or physical restraint.

This effectively disposes of Whaley's challenge to the wording of P.S. 5162.05 itself. The prior sections (1) and (2) are roughly equivalent in wording to the version currently appearing as sections 1589(a)(2) and (4). It is certainly reasonable to construe convictions under those subsections as involving crimes of violence. The BOP has admitted in writing that this is so. See Opp. at 3-4, 11; see also Stokes Decl. ¶ 3. We thus cannot fault the P.S. for identifying section 1589, as limited above, as involving a “crime of violence.”

Whaley's attack is largely framed as an attack on the P.S. However, it is unclear whether, notwithstanding the above construction, the P.S. has been misapplied to Whaley in any identifiable manner. Whaley's petition does not clearly point to any specific determination by BOP that found he committed a crime of violence because of the P.S. Thus, it is simply unclear whether Whaley in fact has been the victim of any misapplication of P.S. 5162.05. The only effect of this classification admitted to by the Government is that it may affect BOP's responsibilities under 18 U.S.C. § 4042(b)(3)(B) to notify a jurisdiction of petitioner's release. Opp. at 13. The petition does not complain about the notification requirement, however, and in any event, there is no evidence that it has been applied to Whaley for that purpose (or that he exhausted administrative remedies that are available regarding notification).

Instead, Whaley argues that the “classification” somehow denies him “opportunities to participate in BOP programs & incentives including, but not limit[ed] to being in a minimum facility[ and to earning] extra time credits under the First Step Act of 2018.” Pet. at 3. As to the reference to “programs & incentives,” in the absence of any specifics as to how this the statement has been misapplied and how the misapplication affected him, the Court cannot issue any relief.

As for the type of facility in which he is incarcerated, the BOP provides uncontroverted evidence that this determination is not made based on P.S. 5162.05. As a BOP official explains: “Inmate custody classification does not rely on whether an inmate committed a violent crime as defined by [P.S.] 5162.05. Instead, Program Statement 5100.08 ․ establishes how violent crime is factored into custody and security classification.” Stokes Decl ¶ 4. Program Statement 5100.08 provides that “[t]he inmate's entire background of criminal convictions (excluding the current offense) and institutional disciplinary findings [are] used to assess points related to his/her history of violence and/or history of escape.” Inmate Security Designation and Custody Classifications, annexed as Exhibit B to Stokes Decl. (Docket # 20-2) (“P.S. 5100.08”), at Chapter 2, Page 2. It appears to contain no reference to P.S. 5162.05.

Finally, with respect to the First Step Act (“FSA”), Whaley is unable to support his apparent contention that P.S. 5162.05 has any bearing on the BOP's classification of him as being ineligible for time credit under the FSA. See Pet. ¶ 9. In fact, the FSA makes no reference to “crimes of violence” but instead excludes any inmate from earning time credits under the FSA who is serving a sentence for certain enumerated crimes. See 18 U.S.C. § 3632(d)(4)(D). One of these enumerated crimes is any type of conviction under 18 U.S.C. § 1589 (forced labor). See 18 U.S.C. § 3632(d)(4)(D)(xxvii) (referring to offenses under “chapter 77” with exceptions not relevant here).

Whaley appears to concede that the FSA itself classified “Forced Labor” as an offense that renders a person ineligible for time credits under the act. Pet. ¶ 10. Whaley argues, however, that the FSA applies only to a prisoner who “is serving” (that is, currently) a sentence governed by the FSA. Id. ¶ 15; see also 18 U.S.C. § 3632(d)(4)(D)(xxvii); 28 C.F.R. § 523.41. Whaley argues that his sentence under section 1589 has already been “fully served” because this portion of his sentence was for 10 years and his aggregate sentence was for 25 years. Pet. ¶ 16. In other words, he argues that the FSA's carveout of ineligibility for people convicted of forced labor does not apply to those who have already completed sentences for such a crime even where they are still incarcerated pursuant to a single judgment of conviction. Id. ¶¶ 15-16. Thus, under his reading of the statute, Whaley contends he should be eligible to earn time credits on the remainder of his 25-year sentence for conspiracy to commit sex trafficking, 18 U.S.C. § 1594(c). Id. ¶ 16.

We reject this argument because it is inconsistent with 18 U.S.C. § 3584(c), which specifies that “[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.” BOP follows this statutory commandment. As stated by a BOP official, “[i]n considering whether a particular conviction renders an inmate who is serving concurrent sentences statutorily ineligible for FSA credits, BOP considers whether any of the sentences that are a component of the inmate's aggregate sentence are disqualifying.” Giddings Decl. ¶ 5. We believe this is a proper construction of the FSA and note that other cases have rejected challenges similar to what Whaley makes here. See Giovinco v. Pullen, 2023 WL 1928108, at *3 (D. Conn. Feb. 10, 2023); Sok v. Eischen, 2022 WL 17156797, at *5 (D. Minn. Oct. 26, 2022) (“[T]he BOP's interpretation of § 3632(d)(4)(D) is not only reasonable, but it appears to be a mandatory interpretation based on the BOP's other statutory obligations.”), adopted, 2022 WL 17128929 (D. Minn. Nov. 22, 2022).

B. Co-Pay Deduction

Whaley argues that BOP incorrectly deducted $2.00 from his inmate Trust Fund Account as a co-pay for medical treatment because the statute authorizing such deductions, 18 U.S.C. § 4048, excludes certain such deductions for certain kinds of medical services, id. § 4048(b)(2), and the services he received fell within one of those categories. See Pet. ¶¶ 25-40. Thus, Whaley seeks return of the $2.00. Id. ¶ 40. This argument is rejected because “habeas corpus does not provide for money damages.” Jenkins v. Haubert, 179 F.3d 19, 24 (2d Cir. 1999); see also Buchanan v. Warden, FCI Otisville, 2014 WL 3778205, at *2 (S.D.N.Y. July 31, 2014) (monetary claims “are not cognizable on § 2241 petitions”). Petitioner makes no response to this argument in his reply. In light of the bar on seeking money damages in a section 2241 petition, this aspect of the habeas petition must be denied.

C. Secure Area for MP3 Player

The petition alleges that the BOP has not provided a secure location where petitioner can charge his MP3 player, see Pet. ¶ 45-49, and that the resulting threat to his property implicates his Due Process rights such that the Court should grant him an injunction directing BOP “to provide a secured MP3 Player station with access to a locking device.” Id. ¶ 53.

We reject this claim. “A prison official's failure to protect an inmate's personal property does not constitute deliberate indifference to the inmate's health or safety as contemplated by the Eighth Amendment.” Najjar v. Caraway, 2006 WL 1517768, at *1 (D. Minn. May 26, 2006); accord Hunter v. Sherman, 49 F. App'x 611, 612 (6th Cir. 2002). “Moreover, a prison's internal security is peculiarly a matter normally left to the discretion of prison administrators.” Rhodes v. Chapman, 452 U.S. 337, 350 n.14 (1981) (collecting cases).

D. Personal Television

The petition challenges BOP's refusal to allow Whaley to purchase and keep a personal television in his cell. See Pet. ¶¶ 54-89.

Whaley contends the refusal to allow him a personal television violates his First Amendment right to access ideas and information. See id. ¶¶ 86-87. However, “[i]t is well established that prison inmates do not have a constitutional right to watch television because the amenity is not considered a necessity for inmates.” Rosales v. LaValley, 2014 WL 991865, at *11 (N.D.N.Y. Mar. 13, 2014). In the case of restrictions on channels of communication, the Supreme Court has held that as long as a restriction “operates in a neutral fashion, without regard to content of the expression, it falls within the appropriate rules and regulations to which prisoners necessarily are subject, ․ and does not abridge any First Amendment freedoms retained by prison inmates.” Pell v. Procunier, 417 U.S. 817, 828 (1974) (citations and internal punctuation omitted). Thus, Whaley has not shown a First Amendment violation.

Whaley contends that state prisoners have access to in-cell televisions and that therefore his right to “equal protection” has been violated. Pet. ¶ 88. This claim fails because there is no case law or argument from authority that would allow the conclusion that federal prisoners constitute a protected class requiring any heightened scrutiny under the Equal Protection Clause. See, e.g., Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (Equal Protection Clause “bars the government from selective adverse treatment of individuals compared with other similarly situated individuals if such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person”) (emphasis and internal quotation marks omitted).

Whaley also argues this denial constitutes a violation of the Eighth Amendment, Pet. ¶ 89, but we cannot find that the denial amounts to “cruel and unusual punishment.”

E. Sex Offender Registration

Whaley contends that his Pre-Sentencing Report (“PSR”) incorrectly stated that he had been convicted of an offense “involving a minor victim,” Pet. ¶¶ 93-94, and that BOP relied on this false information in classifying him as having a committed a “sex offense,” which resulted in requiring him to comply with the Sex Offender Registration Notification Act (“SORNA”) upon his release, id. ¶¶ 90-106. Whaley seeks to force BOP to correct the information in his files. See id. ¶ 106. He contends that the misstatement is requiring him to register as a sex offender upon release from confinement and that it “affects his conditions of his confinement and prevents Petitioner from going to a MINIMUM Facility (Camp) because his crime is classified as a sex offense.” Id.

While the Government argues that this determination has not been administratively exhausted, see Opp. at 9-11, it is not necessary to address the exhaustion issue because the claim fails on the merits. 18 U.S.C. § 4042(c) requires the Bureau of Prisons notify to state, tribal, and local law enforcement in the jurisdiction where a person will reside when the person to be released is required to register under SORNA. SORNA specifies that a person must register under that statute where the person has been convicted of any “sex offense,” which is defined as including “a Federal offense ․ under section 1591 ․ of Title 18; [or] ․ an attempt for conspiracy to commit [such] an offense.” 34 U.S.C. § 20911(5)(A). A jury convicted Whaley on May 26, 2011 of two counts of conspiracy to violate 18 U.S.C. § 1591. See Rivera, 2013 WL 2627184, at *1 (Whaley was convicted of one count of “conspiracy to commit sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. §§ 371 and 1591(a) (2000)” and one count of “conspiracy to commit sex trafficking in violation of, inter alia, 18 U.S.C. §§ 1594(c) and 1591(a) (2009)”).

BOP's implementing Program Statement tracks the statutory requirements and provides that offenses subject to the § 4042(c) notification requirement include § 1591 and “[a]n attempt or conspiracy to commit [such] an offense.” See Notification Requirements Upon Release of Sex Offenders, Violent Offenders, and Drug Traffickers, annexed as Exhibit D to Stokes Decl. (Docket # 20-4) (“P.S. 5110.17”), at 3-5. Because Whaley's convictions include the covered statutes, any error in the PSR would have no bearing on the determination by BOP regarding SORNA.

Whaley's separate argument that SORNA “only applies to offenders convicted prior to July 27, 2006,” Pet. ¶ 104, is meritless as the statute, 34 U.S.C. § 20901 et seq., contains no such limitation.

Whaley contends that the incorrect PSR information has led to a BOP determination that prevents his entry into a minimum-security facility. See Pet. ¶¶ 105-106. But, other than conjecture, he provides no evidence that the alleged misstatement in the PSR had any bearing on BOP's determination of his custody status. The only non-conclusory evidence in the record on this point comes from a declaration of a Correctional Programs Administrator, who states that BOP's policy governing BOP's “categorization of certain inmates as sex offenders for purposes of custody determinations” turns on its assessment of public safety factors (“PSFs”) as is set forth in P.S. 5110.17. Stokes Decl. ¶ 12. “One such PSF is whether the individual is a sex offender” and that designation may be “based on any offense referenced in the Sex Offender Notification and Registration Program Statement., [P.S. 5110.17],” id., which, as already noted, includes the crime for which Whaley was convicted.

F. “Walsh Act” Classification Status

Whaley challenges his classification within the prison system as wrongly being “Walsh Act History-With Conviction,” rather than “Walsh Act History-No Conviction,” which he contends is the appropriate designation. See Supp. Pet. ¶¶ 113-132. He seeks to compel the BOP to change his designation to “Walsh Act History-No Conviction,” see id. at 8, and contends that his current status prevents him from moving to a minimum-security facility and getting a BOP-approved prison job in public, subjects him to a worse “PATTERN” score for the purposes of the FSA, and bars him from participating in BOP's “TRULINCS” messaging program, see id. ¶¶ 124-125, 132.

The classification is a result of a BOP program statement that was enacted as part of the process to determine if a prisoner should be civilly committed. The Program Statement at issue, see Certification and Civil Commitment of Sexually Dangerous Persons, annexed as Exhibit C to Stokes Decl. (Docket # 20-3) (“P.S. 5394.01”), is part of an effort to implement part of the Adam Walsh Child Protection and Safety Act of 2006, PL 109-248, July 27, 2006, 120 Stat. 587 (the “Walsh Act”) — specifically 18 U.S.C. 4248(a), which sets out a process for the certification of a person as a “sexually dangerous person” for the purposes of a civil commitment proceeding. To implement this this statute, BOP has developed two categories relevant here for categorizing inmates: (1) “WA NO CONV,” which “is applied when there is evidence of a criminal sexual offense (e.g., arrest or charge) that did not result in a conviction (e.g. allegations only, dismissed charge, nolle prossed, or acquittal)”; and (2) “WA W CONV,” which “is applied when there is evidence of a criminal sexual offense that resulted in a conviction.” P.S. 5394.01, at 29. P.S. 5394.01 is clear that for this latter category, “[w]hat is of relevance is the offense conduct, not the actual conviction.” Id. Thus, even a person who pleads guilty to a “non-sexual” crime comes within this category if there is evidence that the person engaged in criminal sexual acts, such as “rape” or “sexual assault.” Id.

The Court has difficulty following why Whaley believes he is entitled to be placed in the category of “Walsh Act History-No Conviction.” Whaley argues at length about how his conviction should be categorized for purposes of the program statement, Supp. Pet. ¶¶ 115-116, 128-130, but the categorization of his criminal conviction is not relevant for the determination under P.S. 5394.01. What matters is whether there is evidence of a “criminal sexual offense” without regard to conviction. Here, there is such evidence because Whaley was convicted, among other things, of sex trafficking, Rivera, 2013 WL 2627184, at *1, in a scheme that saw Whaley and/or his co-defendants “force [waitresses] to engage in sexual acts with customers,” and where these same waitresses “were raped or otherwise sexually assaulted by the defendants.” Rivera, 758 F. App'x at 150. Additionally, the sentencing court found that Whaley “personally sexually assaulted victims.” Rivera, 758 F. App'x at 152. This rape and sexual assault is sufficient to indicate that Whaley engaged in conduct that constituted a criminal sexual offense.

The only remaining question is whether or not there was a conviction that “result[ed]” from this criminal sexual offense. See P.S. 5394.01, at 29. Here, there is plainly a connection between Whaley's conduct and his conviction. Certainly, this conduct could not be said to have resulted in, for example, a “dismissed charge” or “acquittal.” Id. While Whaley argues that it is merely an “allegation” because it was not specifically found by a jury, see Reply Br. at 16, we do not see why this should be so. There is nothing in the statute or program statement that limits determinations of criminal sexual conduct to findings made by a jury. Thus, we cannot say that the designation of “Walsh Act History-With Conviction” for Whaley was in violation of any statute or program statement.

Conclusion

For the foregoing reasons, Whaley's petition for a writ of habeas corpus (Docket # 9) should be denied.

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Rearden. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Fed. R. Civ. P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

FOOTNOTES

1.   See Petition for Writ of Habeas Corpus, filed June 3, 2022 (Docket # 1) (“Pet.”); Supplemental Writ of Habeas Corpus, filed Sept. 7, 2022 (Docket # 9) (“Supp. Pet.”); Respondent's Return and Memorandum of Law in Opposition, filed Dec. 30, 2022 (Docket # 17) (“Opp.”); Declaration of Chenelle Pierre, filed Dec. 30, 2022 (Docket # 18); Declaration of Angela Kelly, filed Dec. 30, 2022 (Docket # 19) (“Kelly Decl.”); Declaration of S. Stokes, filed Dec. 30, 2022 (Docket # 20) (“Stokes Decl.”); Declaration of Susan Giddings, filed Dec. 30, 2022 (Docket # 21) (“Giddings Decl.”); Petitioner's Reply, filed Feb. 9, 2023 (Docket # 23) (“Reply Br.”); Letter, filed Feb. 16, 2023 (Docket # 24).

2.   The statute at that time read as follows:Sec. 1589. Forced laborWhoever knowingly provides or obtains the labor or services of a person—(1) by threats of serious harm to, or physical restraint against, that person or another person;(2) by means of any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint; or(3) by means of the abuse or threatened abuse of law or the legal process, shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.Pub. L. 106-386, Div. A. § 112(a)(2), October 28, 2000, 114 Stat 1486-87.

GABRIEL W. GORENSTEIN United States Magistrate Judge