BRILEY v. ORTIZ
OPINION. Signed by Judge Renee Marie Bumb on 9/22/17. (jbk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAY BONANZA BRILEY,
MR. ORTIZ, Warden,
FCI Fort Dix,
Civ. Action No. 17-3535 (RMB)
BUMB, District Judge
Petitioner, Jay Bonanza Briley, presently incarcerated in
FCI Fort Dix, in Fort Dix, New Jersey, filed a petition for writ
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
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:
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
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
This is Petitioner’s second attempt to gain early release
conclusions, preventing him from removing a Public Safety Factor
classification that would permit him to seek early release to
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
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
Plaintiff’s Presentencing Investigation.
(Pet., ECF No. 1, ¶1.)
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.
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
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,
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.
Briley’s Probation Officer, Ms. Smihal, responded.
Pet., Ex. 5.)
Briley states her response was insufficient, and
she erred in stating "the medical evidence suggest [sic] with
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.)
corpus shall not extend to a prisoner unless— He is in custody
in violation of the Constitution or laws or treaties of the
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
Prisons, 432 F.3d 235, 238-39 (3d Cir. 2005); Brown v. Warden
Fairton, FCI, 617 F. App’x 117, 118 (3d Cir. 2015).
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
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.
For the reasons discussed above, the Court dismisses the
petition for a writ of habeas corpus under 28 U.S.C. § 2241.
An appropriate Order follows.
September 22, 2017
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
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