Carvajal v. Tombone

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40610
Conference Calendar
DANIEL CARVAJAL,
Petitioner-Appellant,
versus
JOHN TOMBONE, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-270
--------------------
December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Daniel Carvajal, federal prisoner # 59101-004, appeals the
district court’s decision in which the court construed his 28
U.S.C. § 2241 petition as a 28 U.S.C. § 2255 motion and dismissed
it for lack of jurisdiction. He argues that because he is
challenging the manner in which the Bureau of Prisons (BOP) is
executing his sentence, the district court erred in construing
his petition as a 28 U.S.C. § 2255 motion. Because Carvajal is
challenging his exclusion from various community-based and drug-
treatment programs due to his status as an Immigration and

-- 1 of 3 --

No. 01-40610
-2-
Naturalization Service (INS) detainee, he is challenging the
manner in which his sentence is being executed. Section 2241 is
correctly used to attack the manner in which a sentence is
executed. United States v. Cleto, 956 F.2d 83, 84 (5th Cir.
1992). The district court erred in construing Carvajal’s
petition as a 28 U.S.C. § 2255 motion and dismissing it for lack
of jurisdiction as the 28 U.S.C. § 2241 petition was properly
filed in the district court for the Eastern District of Texas in
which Carvajal is incarcerated. See Hooker v. Sivley, 187 F.3d
680, 682 (5th Cir. 1999).
Carvajal argues in particular that the BOP violated his
equal protection rights in determining that he is not eligible
for various community-based and drug treatment programs because
he is an INS detainee. The BOP’s classification of prisoners
based on whether they are INS detainees or citizens of the United
States is not a suspect classification, and therefore, the
rational basis standard of review is applicable. See Rublee v.
Fleming, 160 F.3d 213, 217 (5th Cir. 1998). The BOP’s
determination that INS detainees are ineligible to participate in
such programs is rationally related to the legitimate
governmental interest of preventing such INS detainees from
fleeing during the community-based portion of the above programs.
See id. at 214, 217. Therefore, the district court’s judgment is
affirmed on the alternative ground that Carvajal has not shown
that the BOP violated his equal protection rights in determining
that he was ineligible to participate in various community-based

-- 2 of 3 --

No. 01-40610
-3-
programs. See Rublee, 160 F.3d at 214, 217; United States v.
McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995).
AFFIRMED.

-- 3 of 3 --