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Rosalio Salazar-Ramirez v. Donna Zickefoose

August 23, 2011

ROSALIO SALAZAR-RAMIREZ, PETITIONER,
v.
DONNA ZICKEFOOSE, RESPONDENTS.



The opinion of the court was delivered by: Hon. Noel L. Hillman

NOT FOR PUBLICATION

OPINION

HILLMAN, District Judge

Rosalio Salazar-Ramirez ("Petitioner"), an inmate incarcerated at FCI Fort Dix in New Jersey, filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, challenging the denial of a transfer to a prison located within 500 miles of his family in Texas. This Court will summarily dismiss the Petition for lack of jurisdiction, without prejudice to any right Petitioner may have to assert his claim in a properly filed action of the kind authorized by Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).*fn1

I. BACKGROUND

On October 12, 2007, United States District Judge Terry R. Means sentenced Petitioner to an aggregate 181-month term of incarceration after a jury in the Northern District of Texas found him guilty of conspiracy to possess with intent to distribute 500 or more grams of methamphetamine and possession of a firearm in relation to a drug trafficking case. See United States v. Salazar-Ramirez, Crim. No. 06-0021-Y Judgment (N.D. TX Oct. 12, 2007). On February 25, 2009, the United States Court of Appeals for the Fifth Circuit affirmed the conviction and sentence. See United States v. Salazar-Ramirez, C.A. No. 07-10680 Opinion (5th Cir. Feb. 25, 2009).

Petitioner asserts that he has been incarcerated at FCI Fort Dix since January 2008. On September 14, 2010, Petitioner submitted an informal administrative remedy requesting that he be transferred to a facility closer to his family in Fort Worth, Texas, since his son is ill and the distance between New Jersey and Texas is so great that his family can rarely see him. (Docket Entry #1, p. 13.) Petitioner's correctional counselor denied the request because transfers closer to family members do not apply to non-citizens. (Id. at 14.) Petitioner submitted an administrative remedy request for a transfer to Warden Zickefoose and on October 18, 2010, Warden Zickefoose denied the request because Program Statement 5100.08 provides that inmates with an immigration detainer, such as Petitioner, are not eligible for a transfer to be near the place of residence upon release. (Id. at 16.) On January 4, 2011, J.L. Norwood, Northeast Regional Director, denied Petitioner's appeal of the denial of a transfer. (Id. at 18.) On March 9, 2011, Harrell Watts, Administrator of National Inmate Appeals, denied Petitioner's appeal. (Id. at 20.)

Petitioner asserts that, although he is a citizen of Mexico, his children, aged five, 11 and 14, are American citizens. He states that his request for a transfer to be closer to his family is based on the condition of his 11-year-old son, who suffers with convulsions, and his sick mother. Plaintiff argues that "BOP failed to properly consider Mr. Salazar-Ramirez request that was based on the condition of his ILL SON and his MOTHER who is very sick as he explain[ed] in his request to the BOP staff." (Id. at 5.) Petitioner seeks a Writ of Habeas Corpus ordering the Bureau of Prisons to transfer him closer to his family in Fort Worth, Texas.

II. STANDARD OF REVIEW

"Habeas corpus petitions must meet heightened pleading requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). Habeas Rule 2(c) requires a § 2254 petition to "specify all the grounds for relief available to the petitioner," "state the facts supporting each ground," "state the relief requested," be printed, typewritten, or legibly handwritten, and be signed under penalty of perjury. 28 U.S.C. § 2254 Rule 2(c), applicable through Rule 1(b).

Habeas Rule 4 requires a judge to sua sponte dismiss a § 2254 petition without ordering a responsive pleading "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court."

28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b). Thus, "Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." McFarland, 512 U.S. at 856. Dismissal without the filing of an answer has been found warranted when "it appears on the face of the petition that petitioner is not entitled to [habeas] relief." Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989); see also McFarland, 512 U.S. at 856; United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (habeas petition may be dismissed where "none of the grounds alleged in the petition would entitle [petitioner] to [habeas] relief"); see also Mayle v. Felix, 545 U.S. 644, 655 (2005).

III. ...


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