The FSA does not divest the BOP of its statutory discretion to determine the location of an inmate's imprisonment, and this Court does not have the authority to compel the BOP to make any retroactive placement decisions. See e.g., Porche v. Salazar, No. 19-CV-00077, 2019 WL 1373683, at *1 (D. Or. Mar. 5, 2019), report and recommendation adopted, 2019 WL 1371139 (D. Or. Mar. 26, 2019) (“Even though petitioner characterizes the BOP's decision as a ‘refusal' to reconsider his designation, that refusal effectively designates petitioner's place of imprisonment and is not reviewable.”).
Other courts have found that this provision applies to claims that seek BOP reconsideration of an inmate's placement decision. See e.g., Porche v. Salazar, No. 19-CV-00077-MK, 2019 WL 1373683, at *1 (D. Or. Mar. 5, 2019), report and recommendation adopted, 2019 WL 1371139 (D. Or. Mar. 26, 2019) (“Even though petitioner characterizes the BOP's decision as a ‘refusal' to reconsider his designation, that refusal effectively designates petitioner's place of imprisonment and is not reviewable.”). The Court therefore lacks jurisdiction to consider Applicant's claim.
See Nichols v. Hendrix, No. 2:20-CV-00109-LPR-JTR, 2020 U.S. Dist. LEXIS 161729, at *5, 2020 WL 5201226 (E.D. Ark. June 12, 2020) (discussing the First Step Act and the applicability of habeas jurisdictions in requests for home confinement). In Porche v. Salazar, 2019 U.S. Dist. LEXIS 51839, 2019 WL 1373683, *1 (D. Ore. March 5, 2019), that court found the BOP's denial of petitioner's transfer request unreviewable based on language in the First Step Act of 2018 specifying that BOP's "'designation of a place of imprisonment . . . is not reviewable by any court.'" Id. (quoting § 3621(b)).
The Court therefore does not have authority to compel the Bureau of Prisons ("BOP") to make any placement decisions under the Act. See United States v. Tovar-Zamorano, 2019 WL 2005918 at *2 (D. Kan. May 7, 2019) (stating the First Step Act "does not divest the BOP of its statutory discretion to determine the location of an inmate's imprisonment"); Porche v. Salazar, 2019 WL 1373683 at *1 (D. Or. Mar. 5, 2019) (same). With regard to Edwards's argument that he should be on Federal Location Monitoring, this Court disagrees.
See Ellis v. United States, No. 3:19-cv-395-K (BT), 2019 WL 3021141, at *2 (N.D. Tex. June 18, 2019), report and recommendation adopted, No. 3:i9-CV-395-K (BT), 2019 WL 3006837 (N.D. Tex. July 9, 2019); United States v. Tovar-Zamorano, 2019 WL 2005918 at *2 (D. Kan. May 7, 2019) (stating the First Step Act “does not divest the BOP of its statutory discretion to determine the location of an inmate's imprisonment”); Porche v. Salazar, 2019 WL 1373683 at *1 (D. Or. Mar. 5, 2019) (same).
While adding the 500-mile provision, the First Step Act amended § 3621(b) to state "[n]otwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court." See United States v. Tovar-Zamorano, 2019 WL 2005918 at *2 (D. Kan. May 7, 2019) (stating the First Step Act "does not divest the BOP of its statutory discretion to determine the location of an inmate's imprisonment"); Porche v. Salazar, 2019 WL 1373683 at *1 (D. Or. Mar. 5, 2019) (same). Therefore, the Court cannot order a transfer to a specific institution as sought by Reynolds.
See Ellis v. United States, No. 3:19-CV-395-K (BT), 2019 WL 3021141, at *2 (N.D. Tex. June 18, 2019), report and recommendation adopted, No. 3:19-CV-395-K (BT), 2019 WL 3006837 (N.D. Tex. July 9, 2019); United States v. Tovar-Zamorano, 2019 WL 2005918 at *2 (D. Kan. May 7, 2019) (stating the First Step Act "does not divest the BOP of its statutory discretion to determine the location of an inmate's imprisonment"); Porche v. Salazar, 2019 WL 1373683 at *1 (D. Or. Mar. 5, 2019) (same). Regarding Edwards's claim that he has been denied 510 minutes of phone time, additional visit time, and video conference calls to his family, he has not demonstrated that he is eligible for these programs, that they are available at Pekin, or that he has exhausted any administrative remedies with regard to the denial of these programs.
The Court therefore does not have authority to compel the BOP to make any placement decisions under the Act. See United States v. Tovar-Zamorano, 2019 WL 2005918 at *2 (D. Kan. May 7, 2019) (stating the First Step Act "does not divest the BOP of its statutory discretion to determine the location of an inmate's imprisonment"); Porche v. Salazar, 2019 WL 1373683 at *1 (D. Or. Mar. 5, 2019) (same). The petition should therefore be dismissed, the motion for leave to amend should be denied as futile, and the emergency motion to remain within 500 miles of Killen, Texas, should be denied.
Nevertheless, the Court notes that prisoners in other cases have asked their case managers for transfer based on the First Step Act. See Porche v. Salazar, No. 3:19-CV-00077-MK, 2019 WL 1373683, at *1 (D. Or. Mar. 5, 2019), report and recommendation adopted, No. 3:19-CV-00077-MK, 2019 WL 1371139 (D. Or. Mar. 26, 2019) ("Based on this provision of the Act, petitioner again asked his case manager if he could be transferred to a facility closer to his release address. His case manager allegedly denied his request, stating that the BOP had not yet made changes to its policies pursuant to the First Step Act.