Opinion
CASE NO. 4:17 CV 1685
09-11-2018
JORGE BONILLA MESA, Plaintiff, v. WARDEN STEVEN MERLAK, et al., Defendants.
JUDGE JAMES G. CARR REPORT & RECOMMENDATION
Introduction
Before me by referral is the pro se petition of Jorge Bonilla Mesa for a writ of habeas corpus under 28 U.S.C. § 2241. The government, responding for Warden Steven Merlak and the United States Immigration and Customs Enforcement ("ICE"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, has moved to dismiss the petition for failure to state a claim upon which relief may be granted. Mesa has responded in opposition to the motion. For the reasons that follow, I will recommend that the motion be granted and that the petition be dismissed.
Non-document order entered September 29, 2017; ECF Nos. 12, 13.
ECF No. 1.
ECF No. 10.
ECF No. 11.
Facts
The facts relevant to adjudicating this motion are few, straightforward, and not in dispute. Mesa is a citizen of Cuba currently incarcerated at the Federal Correctional Institution, Elkton in Lisbon, Ohio ("FCI Elkton"). After his 2010 conviction and sentencing in federal court on multiple drug-related charges, ICE issued a detainer in 2014 notifying the Bureau of Prisons that Mesa was an alien subject to removal from the United States.
ECF No. 1 at 1,5.
ECF No. 10, Ex. 1 (declaration of Mark Gollon).
In 2016, Mesa filed an administrative grievance asking the warden of FCI Elkton to transfer him to Florida. Relying on regulations of the Federal Bureau of Prisons, the warden determined that Mesa was ineligible for a transfer because of the ICE detainer. Mesa unsuccessfully appealed that decision in the administrative channels.
ECF No. 10 at 2 (citing petition).
ECF No. 1, Ex. 1 at 7-9.
Id.
On August 11, 2017, Mesa filed this petition for a writ of habeas corpus. In his petition, Mesa argues that:
ECF No. 1 at 2.
(1) the basis for the ICE detainer - that he is an alien subject to removal - is "inappropriate" because as a Cuban citizen he cannot be deported since "the United States does not deport anyone to Cuba";
(2) he should "be considered" for a prison transfer because he has never had an incident report or disciplinary infraction while in prison; and
(3) being held in his current facility, far from his 8-year-old son, constitutes "extraordinary treatment" that has produced an "atypical and significant
hardship on him in relation to the ordinary incidents of prison life," and so is a violation of due process.
Id. at 2, 4.
Id.
Id. at 4 (internal quotation and citation omitted).
Analysis
A. Standard of review
In adjudicating a motion to dismiss for failure to state a claim upon which relief may be granted, the court is required to "accept all well-pleaded allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff." Although the complaint need not contain "detailed factual allegations," it does require more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Thus, a complaint survives a motion to dismiss if it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." In that regard, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Dubay v. Wells, 506 F.3d 422, 426 (6th Cir. 2007) (internal quotation and citation omitted).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation and citation omitted).
Id.
B. Application of standard
1. ICE detainer
The government asserts that because Mesa is not in custody of ICE, habeas relief is not available to challenge an ICE detainer. As numerous federal cases hold, a prisoner serving a sentence for a criminal conviction is "in custody" of the prison for that offense and not because ICE has lodged a detainer against him with the prison. Here, Mesa is in custody of the Bureau of Prisons as a result of his 2010 conviction and not in ICE custody on immigration charges. Consequently, this Court has no jurisdiction over a habeas petition directed to ICE as the result of any detainer, which "merely notifies prison officials that a decision regarding his deportation will be made by the INS at some future date." 2. Transfer/classification
ECF No. 10 at 5.
See id. at 6, n.1 (citing cases).
Ramirez v. INS, 30 Fed. App'x 510, 510 (6th Cir. 2002).
Id.
Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988).
The United States Supreme Court has definitively held that a prisoner has no constitutional right to be housed in a particular prison or state. Moreover, "transfers and prison assignments are functions wholly within the discretion of the BOP."
Olim v. Wakinekona, 461 U.S. 238, 245 (1983).
Caderno v. Thoms, 50 Fed. App'x 200, 201 (6th Cir. 2002) (citing Olim, 461 U.S. at 245).
Further, prisoner classifications are matters delegated by Congress to the discretion of federal prison officials and thus implicate "no legitimate statutory or constitutional entitlement. . . ." Accordingly, a habeas petitioner who challenges his prison security classification fails to state a claim upon which relief may be granted.
Moody v. Dagget, 429 U.S. 78, 88 n.9 (1976).
Ford v. Harvey, 106 Fed. App'x 397, 399 (6th Cir. 2004) (citing Montayne v. Haymes, 427 U.S. 236, 242 (1976)).
In addition, courts have uniformly considered and rejected Mesa's specific argument that because the United States does not deport anyone to Cuba, it is a violation of due process or equal protection to classify him, a Cuban citizen, as a deportable alien. The fact that he may not actually be deported "does not give rise to a constitutional claim" and "is of no consequence." 3. Extraordinary treatment/due process
Perez v. Lappin, 672 F. Supp. 2d 35, 42-43 (D.D.C. 2009).
Ravelo v. Wagner, No. 5:15-cv-5-DCB-MTP, 2016 WL 6811625, at *2 (S.D. Miss. Oct. 13, 2016).
Godoy v. Zickenfoose, No. 11-3754 (NLH), 2012 WL 2594347, at *2 (D.N.J. July 5, 2012). Contrary to Mesa's assertion that he would never be removed to Cuba, the declaration of Mark Gollon, who is a supervisory Detention and Deportation officer at ICE, states that ICE will act to remove Mesa to Cuba at the end of his prison term, and that ICE has successfully removed criminal aliens to Cuba in the past. ECF No. 10, Ex. 1 at ¶¶ 8, 9.
The United States Supreme Court has recognized that a prisoner may have a due process claim if an action of the BOP creates an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." However, the mere fact that an inmate is incarcerated in a location at some distance from family such that visitations are difficult is not so unusual as to create a due process claim.
Sandin v. Conner, 515 U.S. 472, 484 (1995).
In Reyes v. Holland, the federal district court in Kentucky rejected precisely the same argument advanced here by Mesa. There, the federal prisoner, who, like Mesa, was a deportable alien, requested a transfer from a prison in Kentucky to one in California so as to be closer to his family. The BOP denied the transfer request, citing the fact that, as here, the prisoner was a deportable alien. The district court upheld the decision of the BOP, finding that although the prisoner was at a distance from his family, "the BOP's denial of his request [for a transfer did] not create an atypical and significant hardship in relation to the ordinary incidents of prison life."
Reyes v. Holland, No. 0:11-CV-00090-HRW, 2012 WL 639469 (E.D. Ky. Feb. 27, 2012).
Id. at *1.
Id.
Id. at *3.
Mesa's situation is identical to that of the prisoner in Reyes. His request for a transfer on due process grounds should likewise be rejected for the same reasons articulated in that decision.
Conclusion
For the reasons stated above, the motion by defendants Warden Merlak and ICE to dismiss Mesa's petition for failing to state a claim upon which relief can be granted should be granted. If that recommendation is accepted, the petition itself should be dismissed in its entirety with prejudice. Dated: September 11, 2018
ECF No. 10.
ECF No. 1.
s/ William H. Baughman, Jr.
United States Magistrate Judge
Objections
Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order.
See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986). --------