United States District Court, S.D. Georgia, Waycross Division
ORDER and MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
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.
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).
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.)
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. (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 and because his Petition is without merit.
(Id. at p. 2.)
Whether Jerez-Toco is Entitled to a Transfer
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
(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 ...