Sherrill v. Rios ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
February 1, 2006
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JAMES SHERRILL,
Petitioner - Appellant,
No. 05-1432
v.
(D.C. No. 05-CV-01383-OES)
(D. Colo.)
H. A. RIOS, JR., Warden,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before EBEL, McKAY and HENRY, Circuit Judges.
James Sherrill, a federal prisoner, appeals pro se the dismissal of his 28
U.S.C. § 2241 application for a writ of habeas corpus. We exercise jurisdiction
under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Mr. Sherrill is in the custody of the Federal Bureau of Prisons (“BOP”),
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
serving a twelve-year sentence after conviction at a general court martial of
absence without leave, indecent acts upon a minor, desertion, and disorderly
conduct. See Sherrill v. Commandant, USBD, 118 F. App’x 384, 385 (10th Cir.
2004) (unpublished), cert. denied, 125 S. Ct. 1690 (2005). He claims that in 2003
he was transferred to the medium-security Federal Correctional Institution in
Florence, Colorado, even though he has only 7 “custody points” and even though
that institution is over 500 miles from his home in St. Paul, Minnesota. Mr.
Sherrill asserts that he filed a grievance with the BOP seeking transfer to a low-
security facility within 500 miles of his home, but that his request was denied.
The BOP also denied his administrative appeal, stating that he could not be
transferred “because Low security facilities are experiencing population pressures
and unable [sic] to accommodate additional inmates at this time.” Mr. Sherrill
alleges that he exhausted administrative remedies in May 2005.
In July 2005, Mr. Sherrill filed the current § 2241 petition, asserting that he
is being held in violation of the laws of the United States because the BOP’s
denial of his transfer request was arbitrary and capricious, in violation of 5 U.S.C.
§ 706(2)(A). 1 Specifically, he argues that “[h]undreds of prisoners are regularly
1
Section 706(2)(A), part of the Administrative Procedure Act, states that a
reviewing court shall “hold unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; . . . .” 5 U.S.C. § 706(2)(A).
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transferred to and from low custody facilities even though 100% of BOP facilities
are overcrowded, and have been for many years. To say one person may not be
transferred do [sic] to overcrowding, while the BOP regularly transfers hundreds
of others, is disingenuous . . . [and] implausible.”
The district court decided that Mr. Sherrill was alleging a due process
violation. It dismissed his petition, concluding that he has no constitutional right
to be placed in a low-security facility or in a facility within 500 miles of his
home. The court further concluded that although “prison regulations may create a
liberty interest if they impose an ‘atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life,’” (quoting Sandin v. Conner,
515 U.S. 472, 480 (1995)), Mr. Sherrill’s classification and placement did not
meet that standard.
On appeal, Mr. Sherrill asserts that the district court erred by failing to
address his claim that the rejection of his transfer request was arbitrary and
capricious under 5 U.S.C. § 706(2)(A). He asks that we remand for the district
court to address that claim.
II. DISCUSSION
The only relief that Mr. Sherrill requests in his § 2241 petition is that he be
granted five days’ credit for each day served at a medium-security facility and
three days’ credit for each day served in a facility more than 500 miles from his
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home. He does not cite any authority in support of this requested relief, nor even
indicate why he thinks it would be the appropriate remedy. We deny his section
706 claim because the BOP is granted broad discretion to transfer or not transfer
prisoners. See 5 U.S.C. § 701(a) (“This chapter applies . . . except to the extent
that . . . (2) agency action is committed to agency discretion by law.”). We see
nothing in the record to support an abuse of discretion.
In any event, even assuming that the district court erred by not evaluating
Mr. Sherrill’s claim that section 706(2)(A) applies, and even assuming that the
BOP’s denial of his transfer request was arbitrary and capricious, section 706
instructs courts merely to “set aside” agency actions that are arbitrary and
capricious. 5 U.S.C. § 706(2). We conclude that even were we to “set aside” the
BOP’s action here, that would not entitle Mr. Sherrill to the relief he seeks.
III. CONCLUSION
We therefore AFFIRM the dismissal of Mr. Sherrill’s § 2241 petition.
Finding no “reasoned, nonfrivolous argument” in support of his request for relief,
see DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991), we also DENY
Mr. Sherrill’s motion to proceed in forma pauperis on appeal.
ENTERED FOR THE COURT
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David M. Ebel
Circuit Judge
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