BRILEY v. ORTIZ

Filing 4

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

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

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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

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