United States District Court, E.D. North Carolina, Western Division
FRANCIS O. VILLEDA-FUENTES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
C. DEVER, III UNITED STATES DISTRICT JUDGE.
28, 2018, Francis Oliverio Villeda-Fuentes
("Villeda-Fuentes" or "petitioner"), a
federal inmate proceeding pro se, filed a "motion for
declaratory relief under 28 USC § 2201, 2202 and in the
alternative of an immigration departure of a sentence
reduction akin to Smith v. USA27 F.3d.649 (DC
1994)" [D.E. 1]. The clerk filed the motion as a petition
for a writ of habeas corpus. The court now conducts a
preliminary review pursuant to 28 U.S.C. §§ 1915A
and 2243, and Rule 1 of the Rules Governing Section 2254
Cases in the United States District Courts, and dismisses the
3, 2016, pursuant to a plea agreement, Villeda-Fuentes
pleaded guilty in the United States District Court for the
Western District of North Carolina to one count of to
conspiracy to possess with intent to distribute
methamphetaminein violation of 21 U.S.C. §§
841(b)(1)(B) and 846. See United States v.
Villeda-Fuentes, 690 Fed.Appx. 102, 102 (4th Cir. 2017)
(per curiam) (unpublished); Acceptance & Entry of Guilty
Plea, United States v. Villeda-Fuentes, No.
3:16-cr-00035-FDW-DCK-2, [D.E. 32] (W.D. N.C. May 13, 2016);
Pet [D.E. 1] 2. On August 30, 2016, the court sentenced
Villeda-Fuentes to 92 months' imprisonment. See Judgment,
United States v. Villeda-Fuentes, No.
3:16-cr-00035-FDW-DCK-2, [D.E. 56] (W.D. N.C. Aug. 30, 2016).
is subject to deportation and does not wish to contest that
status. See Pet. at 2. However, Villeda-Fuentes
contends he "has a statutory right to expedited removal
proceedings ... after completion of his sentence imposed by
the Honorable Court" without further immigration
proceedings. Id. at 2; see Id. at 12-14,
Villeda-Fuentes is incarcerated at "the privately owned
for profit prison... named Rivers Correctional Institution[,
]" where the Bureau of Prisons ("BOP") has
"failed to implement the Institutional Hearing
Program" ("IHP") pursuant to BOP Program
Statement 5111.04. Id. at 3. This program would
"ensure deportation proceedings begin as expeditiously
as possible after the date of conviction and the proceedings
are completed prior to expiration of the alien's
sentence." Id. at 4. Villeda-Fuentes notes that
his status as an alien "renders him almost
certainly ineligible for the benefits of 18 USC
§3624(c)[, ]" which permits other inmates to spend
the final portion of their sentences in re-entry centers or
on home confinement. Id. at 10. Villeda-Fuentes also
contends that, without an IHP, he will effectively serve an
additional six months of detention when the BOP releases him
to his immigration detainer. See Id. at 16.
contends that the conditions at Rivers are "very
difficult and torturous." Id. at 8.
Villeda-Fuentes alleges that the food is of "very poor
quality[, ]" that inmates receive "inadequate
healthcare[, ]" there are "very few
rehabilitational [sic] programs, and that inmates at Rivers
pay significantly higher prices for telephone calls and
commissary items. Id. at 8-10. Villeda-Fuentes
further contends that "his family is suffering greatly
as a result of the incarceration beyond the legal sentence he
was given as no lawyer, U.S. Attorney or Court for[e]warned
the defendant that he would suffer a fortuitous increase in
the severity of his sentence simply because he is a
depor[ta]ble alien." Id., at 10-11, 22.
contends that "[t]he Federal Declaratory Judgment Act
provides the Court with considerable options in the creation
of remedies." Id. at 14. Villeda-Fuentes
suggests a number of remedies, including a "transfer ...
to Immigration Detention" on the date he would become
eligible for re-entry release under § 3624(c); a
transfer to a prison with an HP; an order directing the BOP
"to complete or expedited defendant's removal
proceedings prior to his release date[;]" or a
sentencing departure based upon extraordinary family
circumstances pursuant to U.S.S.G. §§ 5H1.6 and
5K2.11. Id., at 17-23.
extent Villeda-Fuentes seeks transfer to a different prison,
prisoners generally do not have a liberty interest in a
particular security classification or prison placement. See
Hewitt v. Helms, 459 U.S. 460.467-68
(1983), abrogated on other grounds
by Sandin v. Conner, S1S U.S. 472 (1995); Moody
v. Daggett, 429 U.S. 78, 88 n.9 (1976). Villeda-Fuentes
does not plausibly allege that he possesses such a liberty
interest. See, e.g., Kalu v. Warden Moshannon
Valley Corr. Ctr., 661 Fed.Appx. 780, 785 (3d Cir. 2016)
(per curiam) (unpublished); Navarro v Johnson, No.
ED CV 15-2317-SVW(E), 2016 WL 4435724, at *2 (CD. Cal. Jan.
13, 2016) (unpublished), report and recommendation
adopted. 2016 WL 4414769 (CD. Cal. Aug. 17, 2016)
(unpublished); Lahigi v. Benov, No.
1:10-CV-02211-AWL 2013 WL 552008, at *7-10 (E.D. Cal. Feb.
13, 2013) (unpublished); cf. Gonzalez v. Wells, No.
CV 308-014, 2008 WL 4593105, at *4 (S.D. Ga. Oct 14, 2008)
(unpublished). Thus, Villeda-Fuentes fails to state a claim.
extent Villeda-Fuentes seeks to commence deportation
proceedings, this court lacks jurisdiction to award him
relief. The Immigration and Nationality Act ("ENA")
provides in pertinent part:
Except as provided in this section and notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, no court
shall have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or action by
the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien under this
8 U.S.C. § 1252(g); see Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 485
& n.9 (1999); Duamutef v. TNS, 386 F.3d 172,
180-81 (2d Cir. 2004); Chapinski v. Ziglar, 278 F.3d
718, 720 (7th Cir. 2002); Campos v. INS, 62 F.3d
311, 313-14 (9th Cir. 1995). Moreover, "[a]
determination of whether the petitioner may stipulate to
removal proceedings before an Immigration Judge is within
ICE's discretion and INA [section] 242(g) prohibits the
district courts from reviewing this determination."
Moncayo v. TTS, Immigration & Customs
Enf't Agency, No. 08- 60858, 2008 WL 5705733, at
*2 (S.D. Fla. Nov. 26, 2008) (unpublished). "Thus, a
prisoner cannot compel... ICE, by way of habeas corpus,
mandamus or the Administrative Procedure Act, to initiate a
removal proceeding." Mejia-Gomez v. DHS/ICE,
No. 1:05-cv-5000-JBS, 2006 WL 1098226, at *2 (D.N.J. Mar. 31,
2006) (unpublished) (citations omitted); see Lahigi,
2013 WL 552008, at *10; Amuah v. Napolitano, No.
5:10-HC-2107-FL, 2011 WL 3664711, at *1 (E.D. N.C. Aug. 18,
2011) (unpublished). Rather, "[w]hether the application
is fashioned as a habeas action or a petition for
mandamus..., any prisoner's claim petitioning... ICE for
a removal-related action prior to the completion of the
prisoner's custodial sentence is unripe and subject to
dismissal." Mejia-Gomez, 2006 WL 1098226, at
*2. Thus, Villeda-Fuentes's petition fails.
United States v. Smith, 27 F.3d 649 (D.C. Cir.
1994), see Pet. at 1, does not help Villeda-Fuentes. See
United States v. Gomez-Jimenez, 750 F.3d 370, 384
n.8 (4th Cir. 2014) (collecting cases); c£ United
States v. Beltran-Rengifo, No. 6:14-CR-29-ORL-37DAB-2,
2016 WL 8200518, at *2 n.2 (M.D. Fla. Aug. 3, 2016)
(unpublished); Kutsenko v. United States, No. CIV.A.
13-2433 NLH, 2014 WL 3735273, at *1 (D.N.J. July 28, 2014)
the court DISMISSES Villeda-Fuentes's petition [D.E. 1].
The court DENIES a certificate of appealability. See 28
U.S.C. § 2253(c); Miller-El v. Cockrell, 537
U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000). The clerk shall close the case.