United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATIONS.
BRAMLETTE UNITED STATES DISTRICT JUDGE.
cause is before the Court on Magistrate Judge Michael T.
Parker's Report and Recommendation (docket entry 12), to
which no objections were filed by the Petitioner. Having
carefully reviewed the Report and Recommendation, and
applicable statutory and case law, the Court finds and orders
Aldo Tur ("Tur") was sentenced in the United States
District Court for the Southern District of Florida on
December 22, 2006, after being convicted for, inter
alia, possession with intent to distribute 50 or more
marijuana plants. On November 25, 2014, Petitioner filed this
habeas action denouncing an immigration detainer held against
him by the United States Immigration and Customs Enforcement
("ICE"). See Petition (docket entry 1) .
Tur repeats this same challenge in his second filed petition.
See Petition (docket entry 3). Tur argued in his
third habeas action that the "Public Safety Factor"
of "Deportable Alien" placed on him by the Bureau
of Prisons ("BOP") erroneously prevented him from
being transferred. See Amended Writ (docket entry 4
argues that the BOP has wrongfully (1) prohibited him from
being placed in a minimum security prison, (2) prohibited him
from participating in a residential drug abuse program
("RDAP"), (3) prohibited him from participating in
a residential reentry center ("RRC"), (4)
prohibited him from being transferred to a facility closer to
his family, (5) prohibited him from being reunited with his
family at the earliest possible time, and (6) prohibited him
from participating in Federal Prison Industries
("FPI"). See Amended Writ (docket entry 4
at 3-4). Further, Tur claims that his incarceration at the
Adams County Correctional Center ("ACCC")
contravenes the letter and spirit of Program Statement
8120.02, Ch. 5, p. 6 and that this constitutes a violation of
his constitutional rights, specifically the rights afforded
by the Due Process Clause. See Amended Writ (docket
entry 4 at 6-9) .
Magistrate Judge's Recommendations
Judge Parker entered his Report and Recommendation on
December 16, 2016, wherein he considered Tur's petition
under 28 U.S.C. § 2241. The Magistrate Judge recommends
that the relief sought in the Petition for Writ of Habeas
Corpus (docket entries 1, 3, and 4) be denied and that this
case be dismissed with prejudice. See Report and
Recommendations (docket entry 12 at 8).
Magistrate Judge concludes that the Court lacks jurisdiction
to address Petitioner's immigration detainer because
Petitioner does not meet the "in custody"
requirement of 28 U.S.C. § 2241. Zolicoffer v.
United States Dep't of Justice, 315 F.3d 538, 540
(5th Cir. 2003); Lewin v. Thompson, 996 F.2d 305
(5th Cir. 1993) ("Although [an Immigration and
Naturalization Service ("INS")] detainer may affect
[petitioner's] status and classification in prison, he is
not in custody of the INS for habeas purposes.");
see also Campillo v. Sullivan, 853 F.2d 593, 595
(8th Cir. 1988) (filing of an immigration detainer against a
Cuban serving a sentence for narcotics violations was
"insufficient" to alter an alien's status as a
"custodial detainee" and, thus he could "not
challenge the detainer by way of habeas corpus.")
considering the allegations relating to the BOP Public Safety
Factors set forth in Tur's third petition (docket entry
4), the Magistrate Judge views them to be improperly brought
in a habeas corpus petition. A habeas corpus matter emanates
when the action challenges the fact or duration of an
inmate's confinement. Jackson v. Torres, 720
F.2d 877, 879 (5th Cir. 1983) . Alternatively, an
inmate's challenge to the conditions of confinement is
properly pursed as a civil rights challenge under Section
1983 or Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). See Cook
v. Texas Dep't of Criminal Justice Transitional Planning
Dep't., 37 F.3d 166, 168 (5th Cir. 1997). Confusion
arises when an inmate challenges an unconstitutional
condition of confinement or prison procedure that affects the
timing of his release from custody. Carson v.
Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997). In the
Fifth Circuit, if a favorable determination of an
inmate's claims would not automatically entitle the
inmate to accelerated release, the proper vehicle is a civil
rights suit. Id. Because Tur has failed to allege
that any favorable determination would entitle him to a
speedier release, he is not entitled to pursue his claims
under Section 2241.
Judge Parker finds that Petitioner has not asserted a
violation of a constitutionally protected right entitling him
to relief pursuant to Bivens.i Petitioner's
requests that he be transferred to a facility where he would
have an opportunity to participate in certain programs and
receive benefits. He further claims that the refusal to
transfer him constitutes a violation of his rights afforded
by the Due Process Clause. However, the BOP's decision to
classify Petitioner as a "Deportable Alien, "
despite the fact that he may not be deported,
iBivens, 403 U.S. 388 (1971). does not give rise to
a constitutional claim. See e.g., Perez v.
Lappin, 672 F.Supp.2d 35 (D.D.C. 2009) (holding that a
"Deportable Alien" Public Safety Factor as applied
to a Cuban did not violate the petitioner's
constitutional rights or violate the Administrative
Procedures Act); see also Phuong Dong Duong v.
Martin, 2014 WL 1665012, at *2 (S.D.Miss. April 25,
2014)(holding that petitioner's security classification
of "Deportable Alien" did not implicate any
petitioner also argues that he was deprived of liberty
without due process because the BOP refused to transfer him
to another facility. A prisoner's liberty interest
protected by the Due Process Clause is "generally
limited to freedom from restraint which . . . imposes an
atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life." Sandin v.
Conner, 515 U.S. 472, 483-84 (1995). The protections of
the Due Process Clause do not extend to every adverse or
unpleasant condition experienced by an inmate. Madison v.
Parker, 104 F.3d 765, 767 (5th Cir. 1997). Prisoner
classification and eligibility for rehabilitative programs in
the federal system do not automatically activate a due
process right. Moody v. Daggett, 429 U.S. 78, 88
(1976). Moreover, classification and ineligibility do not
impose an atypical and significant hardship. Becerra v.
Miner, 248 F.App'x 368, 370 (3rd Cir. 2007) . It is
well settled that inmates do not have a constitutionally
protected right to serve a sentence in any particular
institution. Tighe v. Wall, 100 F.3d 41, 42 (5th
no objection by the Petitioner and having reviewed the Report
and Recommendation for plain error, the Court is satisfied
that Magistrate Judge Parker has issued a thorough opinion.
Accordingly, IT IS HEREBY ORDERED that the undersigned ADOPTS
Magistrate Judge Parker's recommendation as the findings
and conclusion of this Court;
FURTHER ORDERED that the Petition for Writ of Habeas Corpus