United States District Court, N.D. New York
May 28, 2014
ANTHONY PACK, Petitioner,
WARDEN, Federal Correctional Institution at Ray Brook, Respondent.
ANTHONY PACK, Petitioner, Pro Se Oakdale Federal Correctional Institution Inmate Mail/Parcels Oakdale, LA.
RICHARD S. HARTUNIAN, ESQ. Assistant United States Attorney-Syracuse, HARLES E. ROBERTS, Assistant United States Attorney, James M. Hanley Federal Building Syracuse, NY, Attorney for Respondent.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Petitioner Anthony Pack brings this Habeas Corpus Petition, pursuant to 28 U.S.C. § 2241, seeking removal of a classification order preventing his transfer to a Federal Correctional Institution ("FCI") in or near his home state of New Jersey, on the grounds that the classification is unconstitutional. Dkt. No. 1, Pet. Respondent seeks dismissal of the Petition on the grounds that Petitioner's claim is incognizable and unexhausted. Dkt. No. 4. For the reasons stated below, we recommend that the Petition be DENIED and that no certificate of appealability be granted.
On December 10, 2008, Petitioner was convicted, in the United States District Court of New Jersey, of bank robbery and sentenced to 132 months imprisonment. Pet. at pp. 2 & 3. The sentencing court recommended that Petitioner be housed in a facility close to his home in New Jersey. Id. at p. 3. Petitioner's mother, who lives in New Jersey is physically ill and unable to travel long distances to visit him. See id. at pp. 3-4 & Ex. I, Lt., dated June 10, 2010. During and/or after sentencing,  Petitioner was subjected to a "seperatees order" barring him from being housed with certain other identified federal inmates. Id. at p. 3.
The provisions of 28 U.S.C. § 2241 allow a prisoner to challenge "the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.'" Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006) (quoting Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001)) (alterations omitted). Construed liberally, Petitioner argues that the "seperatees order, " which prevents him from being housed with certain other federal inmates, unconstitutionally prohibits him from being transferred to a prison closer to his home state of New Jersey and his ailing elderly mother. See generally Pet. Such a claim clearly falls under the auspices of § 2241. See Levine v. Apker, 455 F.3d at 78 (citing cases for the propositions that challenges to the location of confinement fall within § 2241).
Pursuant to § 2241, prisoners must exhaust any available administrative remedies prior to filing a federal habeas petition. Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001). Respondent argues that Petitioner has failed to exhaust his administrative remedies in the instant case. Dkt. No. 4, Rep't's Mem. of Law at pp. 4-5. However, we need not concern ourselves with the issue of exhaustion because it is clear that even if Petitioner has exhausted his claim, he cannot establish that his inability to transfer to the FCI of his choice violates his constitutional rights.
Indeed, "[i]t is well-established that a prisoner has no constitutional right to serve a sentence in any particular institution or to be transferred (or not transferred) from one facility to another.'" See Thomas v. Terrell, 2012 WL 1745434, at * 3 (E.D.N.Y. May 15, 2012) (quoting Bennett v. Terrell, 2010 WL 1170134, at * 1 (E.D.N.Y. 2010)). This is so because Congress has given federal prison officials full discretion to determine prisoner classifications. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); see also 18 U.S.C. § 3621(b) (stating that the "Bureau of Prisons shall designate the place of the prisoner's imprisonment"); Pugliese v. Nelson, 617 F.2d 916 (2d Cir. 1980) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976), for the proposition that "where prison authorities have unfettered discretion to transfer prisoners from one institution to another, a prisoner's interest in avoiding transfer to an institution affording less favorable living conditions is insufficient to qualify for due process protection"). Therefore, neither the "seperatee order" enforced by the Bureau of Prisons nor Petitioner's inability to transfer to a federal correctional facility closer to his home state violate his constitutional rights.
Accordingly, we recommend that the Petition be DISMISSED with prejudice.
For the reasons stated herein, it is hereby
RECOMMENDED, that the Petition (Dkt. No. 1) be DISMISSED with prejudice; and it is further
RECOMMENDED, that because the Court finds Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), no certificate of appealability should issue with respect to any of Petitioner's claims. See 28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000), cert. denied 531 U.S. 873 (2000); and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(a).