Filing 4

OPINION. Signed by Judge Renee Marie Bumb on 9/22/17. (jbk, )

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE : : : : : : : : : : : : : JAY BONANZA BRILEY, Petitioner, v. MR. ORTIZ, Warden, FCI Fort Dix, Respondent. Civ. Action No. 17-3535 (RMB) OPINION BUMB, District Judge Petitioner, Jay Bonanza Briley, presently incarcerated in FCI Fort Dix, in Fort Dix, New Jersey, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, on May 17, 2017, seeking relief in the form of an order directing the BOP to annotate his PSR; remove the Public Safety Factor from his file; and order the BOP to immediately release Petitioner to home confinement Petitioner under has 18 U.S.C. established § 3621(b). his financial (Pet., ECF No. 1.) eligibility for IFP status, and his IFP application (ECF No. 1-1) will be granted. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, applicable to 28 U.S.C. § 2241 through Rule 1, scope of the rules, provides, in relevant part: The judge must promptly examine [the petition]. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order. For the reasons discussed below, the Court dismisses the petition. I. BACKGROUND This is Petitioner’s second attempt to gain early release to home confinement Sentence Petitioner Report. based on (“PSR.”) alleged his an alleged In PSR Civil error Action contained in his Pre- 17-1750(RMB), inaccurate medical conclusions, preventing him from removing a Public Safety Factor from his prison records and obtaining a lower security classification that would permit him to seek early release to home confinement. 1750(RMB) Action (“Action 1750, this (Briley 1750”) Court v. Ortiz, (D.N.J.) held that Civ. (Pet., Action ECF Briley did No. not No. 17- 1.)) state In a cognizable Due Process claim that he was deprived of transfer to a camp. (Action 1750, Opinion, ECF No. 3 at 3.) In his present petition, Briley states: [Under 28 U.S.C.S. 2241, [] pursuant to 18 U.S.C.S. 3621(b), claims the Bureau of Prisons wrongfully executed his sentence by 2 using a erred [sic] Presentence Report when determining his designation and transfer during his incarceration, due to his U.S. Probation Officer failing to investigate exculpatory evidence when doing the Plaintiff’s Presentencing Investigation. (Pet., ECF No. 1, ¶1.) Briley petition. alleges the following facts in support of his Briley sent a subpoena for production of his Pre- sentence Investigation and Pre-sentence Report File to his U.S. Probation Officer (“USPO”), Ms. Smihal. (Id., ¶4.) Upon review of the documents Ms. Smihal produced, Briley concluded that Ms. Smihal failed to investigate exculpatory evidence. (Id., ¶5.) Briley asserts his probation officer should have investigated whether the victim’s bodily injuries were due to degenerative diseases, rather than the assault by Briley. (Id., ¶6.) Specifically, Briley’s PSR File did not contain an investigation into the third-party Notice of Decision from the U.S. Department of Labor, stating that the victims, who are police officers, failed to provide concludes there injuries. “Fact was no of Injury.” evidence Briley (Id., ¶7.) caused the Thus, he officers’ (Id.) This led Briley to file a “BOP 5800.17(11)(c), Challenge to Information in February 2017, seeking a correction in his BOP files based on the alleged error in his PSR. (Id., ¶¶8-9.) Briley’s Probation Officer, Ms. Smihal, responded. 3 (Id., ¶12, Pet., Ex. 5.) Briley states her response was insufficient, and she erred in stating "the medical evidence suggest [sic] with sufficient indicia impairments that Defendant Defendant." are of reliability manifested direct that subsequent result of to being the the injuries arrest assaulted of by and the the (Id., ¶15.) Therefore, Briley concludes “[t]he USPO failing to investigate the evidence contained in exhibit 2 and 3 caused the Bureau of Prison to wrongfully execute the Plaintiff sentence [sic] by sending him to a low facility at his initial intake into the BOP, instead of the recommended Camp facility that Judge Liam O'Grady specified;” and “[d]ue to the Plaintiff's erred PSR the Bureau of Prison violated 18 U.S.C. 3621 (b).” (Id., ¶¶18, 20.) II. DISCUSSION 28 U.S.C. § 2241(c)(3) provides “[t]he writ of habeas corpus shall not extend to a prisoner unless—[] He is in custody in violation of the Constitution or laws or treaties of the United States.” A petition under § 2241 is the proper vehicle for relief when a judgment in the petitioner’s favor affects the fact or duration of his confinement. U.S. 475, 498-99 (1973). Preiser v. Rodriguez, 411 The failure to make placement and transfer determinations pursuant to 28 U.S.C. § 3621(b) may be challenged under § 2241. See e.g. Woodall v. Federal Bureau of 4 Prisons, 432 F.3d 235, 238-39 (3d Cir. 2005); Brown v. Warden Fairton, FCI, 617 F. App’x 117, 118 (3d Cir. 2015). “Because the decision to transfer a prisoner pursuant to § 3621(b) is discretionary, the appropriate remedy for [a] § 2241 petition would be ‘an order requiring the BOP to consider—in good faith— whether or not [he] should be transferred to a[n RRC]’ pursuant to § 3621(b)”. Brown, 617 F. App’x at 119 (quoting Woodall, 432 F.3d at 251 (“[T]hat the BOP may assign a prisoner to a CCC does not mean that it must.”)). The only habeas relief available to Briley is an order requiring the BOP to consider whether he should be transferred pursuant to § 3621(b). The Court cannot require the BOP to immediately transfer Briley to home confinement. See Brown v. Hogsten, 214 F. App’x 124, 126-27 (3d Cir. 2007) (“Woodall does not require [the petitioner’s] immediate transfer to a CCC to serve the remainder of his sentence.) Additionally, habeas relief is unavailable where a petitioner challenges erroneous assignment of a public safety factor that prevents him from being placed at a minimum security level. F. App’x 148, 150 (3d Cir. 2007). Martin v. Nash, 227 Therefore, Petitioner has not stated a cognizable habeas claim under § 2241. III. CONCLUSION For the reasons discussed above, the Court dismisses the petition for a writ of habeas corpus under 28 U.S.C. § 2241. 5 An appropriate Order follows. Dated: September 22, 2017 s/Renée Marie Bumb Renée Marie Bumb United States District Judge 6

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