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Nunez v. Lindsay


June 27, 2007


The opinion of the court was delivered by: Judge Vanaskie


I. Introduction

Petitioner Gerson Nunez, an inmate at the Canaan United States Penitentiary Federal Prison Camp ("FPC-Canaan"), in Waymart, Pennsylvania, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking an immediate transfer to a Residential Re-Entry Center ("RRC")*fn1 located in Bronx, New York, or similar facility, for the remainder of his sentence.*fn2 (Dkt. Entry 1, Petition.) Nunez avers that, pursuant to 18 U.S.C. § 3621(b),*fn3 the BOP may transfer him to a RRC at anytime during his incarceration. Nunez wants the BOP to place him in a RRC prior to the last ten percent of his sentence as an exercise of its discretion under 18 U.S.C. § 3621(b). Petitioner expressly disavows making this request pursuant to 18 U.S.C. § 3624(c),*fn4 which mandates BOP consideration of placing an inmate in pre-release custody near the end of his sentence. (Exhibit D to Habeas Petition, Request for Administrative Remedy.) Nunez claims the BOP's denial of his request for immediate RRC placement because he has not yet served nine-tenths of his sentence violates Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005), as the decision was not based on any of the five factors set forth in § 3621(b).*fn5 Nunez asks the Court to direct his immediate transfer to a RRC, or "order the BOP to conduct a review of the request for transfer to RRC" under the requirements of 18 U.S.C. § 3621(b) and Woodall, supra. (Dkt. Entry 8, Nunez's Traverse.)

For the following reasons, the Petition will be denied.

II. Background

On or about April 6, 2000, Nunez was convicted of a series of drug related (cocaine) charges and received a prison term of 151 months. (See Dkt. Entry 8, Nunez's Traverse, at 8-10.) Nunez is currently scheduled to be released from custody on March 2, 2010, via Good Conduct Time release. (See Dkt. Entry 1, Petition, Exh. I.) His assigned pre-release preparation date is September 2, 2009.*fn6 (Id.)

In December of 2004, Nunez filed an Inmate Request to Staff form, requesting to be placed in one of three correctional facilities, all of which are RRCs.*fn7 BOP staff denied Nunez's request, noting that he was "not eligible for transfer to a community corrections center" at that time. (Id. at Exh. A.) Petitioner then filed an administrative remedy request, seeking "transfer to a correctional facility (CCC) under Title [18 U.S.C.] § 3621(b)." (Id. at Exh. B.) In September 2005, while noting that the BOP could transfer an inmate to a RRC for more than the last ten percent of his term, and for a period greater than six months, if appropriate, the BOP denied Nunez's request, stating he was "not within the last 6 months of [his] sentence, nor [did he] have extenuating circumstances to allow for [RRC] placement above and beyond the 6 month period. [Nunez] will be considered for [RRC] placement during [his] regularly scheduled team meeting approximately 11-13 months prior to [his] release date." (Id. at Exh. C.) Dissatisfied with this response, Nunez appealed the matter through all levels of the BOP administrative remedy process. In doing so, Nunez was clear that his transfer request was to be guided by 18 U.S.C. § 3621(b), and not the pre-release standards. (Id. at Exhs. D, F and H.) All of Nunez's administrative appeals were denied. (Id. at Exhs. G and I.)

III. Jurisdiction

A federal prisoner may challenge the execution of his sentence via a petition for habeas corpus brought pursuant to 28 U.S.C. § 2241. Woodall, 432 F.3d at 241-42. Nunez essentially argues that he has been wrongfully denied a transfer to a less secure institution. It is clear that section 2241 cannot be used to present a challenge to the refusal to transfer an inmate from one prison to a similar facility. Ganim v. Federal Bureau of Prisons, No. 06-3810, 2007 WL 1539942 (3d Cir. May 29, 2007). Nunez, however, is seeking a writ of habeas corpus to require the BOP to transfer him to a much less secure facility, a RRC, for the remainder of his prison term. In Woodall, the Third Circuit Court of Appeals reasoned that because "[c]arrying out a sentence through detention in a [RRC] is very different from carrying out a sentence in an ordinary penal institution," the petition "crosse[d] the line beyond a challenge to, for example, a garden variety transfer," and was properly brought pursuant to § 2241. Id. at 243; Thus, it appears that the Court has jurisdiction to consider Nunez's claims under 28 U.S.C. § 2241.

IV. Discussion

It is undisputed that the BOP has the authority to designate the place of imprisonment for each prisoner committed to its custody, taking into account, inter alia, the history and characteristics of the individual convict. See 18 U.S.C. § 3621(b); Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). It is also "well established that the decision where to house inmates is at the core of prison administrators' expertise." McKune v. Lile, 536 U.S. 24, 39 (2002). An inmate does not have a justifiable expectation protected by the Due Process Clause to be confined in any particular prison. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983).

Nunez's counselor denied his request for immediate RRC placement because he was "not within the last 6 months of [his] sentence, nor [did he] have extenuating circumstances to allow for [RRC] placement above and beyond that 6 month period." (Dkt. Entry 1, Exh. C.) Nunez was advised that his RRC placement eligibility would be considered 11 to 13 months in advance of his March 2, 2010, release date, and that he would not be considered for RRC placement earlier than September 2, 2009. (Dkt. Entry 1, Exh. I.) Nunez, however, believes that the denial of his request for transfer to the RRC prior to serving the last ten percent of his sentence is in conflict with Woodall and § 3621(b). This is not so.

In Brown v. Hogsten, 214 Fed. Appx. 124 (3d Cir. 2007), the Third Circuit Court of Appeals recently affirmed the rejection of an inmate's claim for RRC placement materially indistinguishable from that presented here. Brown's mandatory release date, like Nunez's, was years away. The Third Circuit summarily concluded that, under these circumstances, Brown was "not entitled to immediate placement in any particular facility, including a [RRC]." Id. at 127.

Contrary to Nunez's assertion, Woodall simply affirms the steps the BOP should follow when considering "in good faith" a prisoner's placement in any facility, including a RRC. Woodall does not dictate when such a consideration must take place, other than when the BOP designates an offender to a particular facility, whether that placement occurs at the commencement of the offender's sentence or at another point in time during his or her incarceration. Nothing in 18 U.S.C. § 3621(b) mandates if or when the BOP is required to transfer, or even consider, an inmate's request for transfer to any particular facility. Rather, it is the pre-release statute, § 3624(c), which commands that consideration for RRC placement will take place during the last ten percent or six months of a sentence. Nunez, however, explicitly repeats throughout his petition that he does not seek transfer to a RRC pursuant to the pre-release statute, but exclusively via § 3621(b).

In sum, the BOP has the discretion under 18 U.S.C. § 3621(b) to place Nunez at any facility at any point during his period of incarceration. Title 18 U.S.C. § 3621(b) does not provide an inmate any right or entitlement to have the BOP review an inmate generated request for transfer, even to a RRC, prior to an inmate's pre-release eligibility date. Nunez's Good Conduct Time Release date is set as March 2, 2010, and his pre-release preparation date is September 2, 2009. Although the BOP, under the discretion granted it by Congress in § 3621(b), maintains the authority to place Nunez at a RRC for greater than six months if warranted, the BOP is not required to consider Nunez's request for RRC placement under § 3624(c) until he approaches the end of his term. The BOP denied Nunez's request for immediate RRC placement because he had not yet reached his pre-release preparation date and because he presented no extenuating circumstances suggesting the need for a greater than six month RRC placement. The BOP's decision to deny Nunez's request for a RRC transfer is not subject to judicial review as he has no protected right to be confined in any prison. The placement of an inmate is a matter committed to the discretion of the BOP, subject to the congressional directive pertaining to inmates approaching the conclusion of their confinement.

An appropriate Order follows.


AND NOW, this 27th day of JUNE, 2007, for the reasons set forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus (Dkt. Entry 1) is DENIED.

2. Nunez's Motion to Expedite (Dkt. Entry 9) is DENIED as moot.

3. The Clerk of Court is directed to mark this matter CLOSED.

Thomas I. Vanaskie United States District Judge

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