Tur v. Department of Homeland Security - Immigration and Customs Enforcement

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 12 Report and Recommendations - IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (docket entries 1, 3, and 4) is DENIED; IT IS FURTHER ORDERED that the Petition is DISMISSED WITH PREJUDICE. A Final Judgment dismissing the Petition with prejudice will follow in accordance with Federal Rule of Civil Procedure 58. Signed by Honorable David C. Bramlette, III on 6/5/2017 (ND)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ALDO TUR, #76833-004

PETITIONER

VS.

CIVIL ACTION NO. 5:14-cv-00112-DCB-MTP

DEPARTMENT OF HOMELAND SECURITY
– Immigration and Customs Enforcement
and BARBRA WAGNER, Warden

RESPONDENTS

ORDER ADOPTING REPORT AND RECOMMENDATIONS
This 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 as follows:
I. Background
Petitioner 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

immigration

filed

detainer

held

this

habeas

against

him

action
by

the

denouncing
United

an

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”

1

placed

on

him

by

the

Bureau

of

Prisons

(“BOP”)

erroneously

prevented him from being transferred. See Amended Writ (docket
entry 4 at 6-9).
Petitioner 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).
II. Magistrate Judge’s Recommendations
Magistrate 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

2

1, 3, and 4) be denied and that this case be dismissed with
prejudice. See Report and Recommendations (docket entry 12 at 8).
The

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.”)
In 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,

Alternatively,

an

720

inmate’s

F.2d

877,

challenge

879
to

(5th
the

Cir.

1983).

conditions

of

confinement is properly pursed as a civil rights challenge under
3

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

automatically

entitle

of

the

an

inmate’s

inmate

to

claims

accelerated

would

not

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.
Furthermore,
asserted

a

Judge

violation

Parker
of

a

finds

that

Petitioner

constitutionally

has

protected

not

right

entitling him to relief pursuant to Bivens.1 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,

1

Bivens, 403 U.S. 388 (1971).

4

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 constitutional interest).
The 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
5

sentence in any particular institution. Tighe v. Wall, 100 F.3d
41, 42 (5th Cir. 1996).
III. Order
Finding 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;
IT IS FURTHER ORDERED that the Petition for Writ of Habeas
Corpus (docket entries 1, 3, and 4) is DENIED;
IT IS FURTHER ORDERED that the Petition is DISMISSED WITH
PREJUDICE.
A Final Judgment dismissing the Petition with prejudice will
follow in accordance with Federal Rule of Civil Procedure 58.
SO ORDERED, this the 5th day of June, 2017.

_/s/ David Bramlette________
UNITED STATES DISTRICT JUDGE

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