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Jerez-Toco v. Johns

United States District Court, S.D. Georgia, Waycross Division

August 9, 2017

NERY JEREZ-TOCO, Petitioner,
v.
WARDEN TRACY JOHNS; GEO GROUP, INC.; GEORGE ZOLEY; and CHARLES SAMUELS, [1]Respondents.

          ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES 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 RECOMMEND the Court DENY Jerez-Toco's Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Jerez-Toco leave to proceed in forma pauperis on appeal.

         BACKGROUND

         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, (id. at p. 12), and his sentence was later reduced to 60 months' imprisonment based on an amendment to the United States Sentencing Guidelines, (doc. 11-1, p. 18). Jerez-Toco has a projected release date of January 28, 2018, via good conduct time release. (Id. at p. 9).

         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. (Id.)

         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.[2] (Doc. 11, p. 1.) Respondent alleges the application of a PSF does not require, as a condition precedent, the existence of a lodged detainer. In addition, Respondent asserts the BOP properly determined that D. Ray James Correctional Facility meets Jerez-Toco's programming and security requirements, and Jerez-Toco's Petition should be dismissed for lack of jurisdiction[3] and because his Petition is without merit. (Id. at p. 2.)

         DISCUSSION

         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. See Olim v. Wakinekona, 461 U.S. 238, 245-47 (1983); Meachum v. Fano, 427 U.S. 215, 223-25 (1976). Instead, 18 U.S.C. § 3621(b) provides the BOP with broad discretion to choose the location of an inmate's imprisonment. Pritchett v. United States, No. 3:10cv422, 2012 WL 2568094, at *2 (N.D. Fla. May 25, 2012). In designating the place of an inmate's imprisonment, the BOP shall consider:

(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence-
(A) concerning the purposes for which the sentence to imprisonment was determined ...

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