ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
R. STAN BAKER, Magistrate Judge.
Petitioner Nery Jerez-Toco ("Jerez-Toco"), who is incarcerated at D. Ray James Correctional Facility in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response. (Doc. 11.) For the reasons which follow, I
Jerez-Toco pleaded guilty to one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, in the Western District of Pennsylvania on April 2, 2014. (Doc. 11-1, p. 11.) He was sentenced to 70 months' imprisonment, (
In his Petition, Jerez-Toco states he is challenging the Bureau of Prisons' ("BOP") denial of his request to be transferred to a facility within 500 miles of his residence in Los Angeles, California. (Doc. 1, p. 2.) Jerez-Toco maintains he does not have an Immigration and Customs Enforcement ("ICE") detainer lodged against him, and thus, it is within the BOP's discretion to grant him his requested transfer. (
Respondent contends the BOP assigned Jerez-Toco with a public safety factor ("PSF") of deportable alien, which was applied because he is not a citizen of the United States and is subject to deportation at the end of his sentence.
I. Whether Jerez-Toco is Entitled to a Transfer
A prisoner has no constitutional right to select a particular correctional facility for his placement or to be transferred to a different facility upon request.
18 U.S.C. § 3621(b). The BOP also "may direct the transfer of a prisoner from one penal institution to another."
In this case, Jerez-Toco is seeking a "nearer release transfer", which would "move the inmate closer to [his] legal residence or release destination, consistent with [his] security level." (Doc. 11-1, p. 41.) However, BOP policy does not "create a right to a nearer release transfer, and such decisions are within the discretion of the BOP." (Doc. 11-1, p. 4.) An inmate having, inter alia, "an ICE detainer for a hearing will not be transferred for nearer release purposes since [he] will be returning to the community outside, rather than inside, the United States upon release." (
The BOP exercised its broad discretion and determined Jerez-Toco is not eligible for a nearer release transfer, pursuant to Program Statement 5100.08. There being no evidence or even more than a conclusory assertion that the BOP abused its discretion by denying a nearer release transfer, Jerez-Toco is not entitled to his requested relief. Consequently, the Court should
To the extent Jerez-Toco attempts to state a claim that he has a constitutional right to be transferred to a facility closer to his family members, such a claim must fail. To be clear, a prisoner has no due process or liberty interest in his placement at a particular prison, nor does the Constitution "guarantee that the convicted prisoner will be placed in any particular prison."
II. Leave to Appeal
in Forma Pauperis
The Court should also deny Jerez-Toco leave to appeal in forma pauperis. Though Jerez-Toco has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in the Court's order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma pauperis is not taken in good faith "before or after the notice of appeal is filed"). An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective standard.
Based on the above analysis of Jerez-Toco's Petition and Respondent's Response, there are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should
Based on the foregoing, I
Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge will make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not meeting the specificity requirement set out above will not be considered by a District Judge. A party may not appeal a Magistrate Judge's report and recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a District Judge. The Court