Zamarripa v. Peterson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 15 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
ANTONIO ZAMARRIPA,
Petitioner-Appellant,
No. 04-6145
v. (Western District of Oklahoma)
(D.C. No. CV-04-341-M)
T. C. PETERSON, Warden,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before EBEL, MURPHY, and McCONNELL, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This matter is before the court on Antonio Zamarripa’s appeal from the
district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition.
*
This order and judgment is not binding precedent, except under the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.
Zamarripa is currently in the custody of the Federal Bureau of Prisons (“BOP”).
He alleges that his 120-month term of incarceration will end on November 24,
2004. On March 19, 2004, Zamarripa filed a petition for a writ of habeas corpus
in the United States District Court for the Western District of Oklahoma. In the
petition, Zamarripa alleged that the BOP is required, pursuant to 18 U.S.C.
3624(c), to transfer him to a halfway house or to home confinement for the last
six months of his term of incarceration.
“A necessary predicate for the granting of federal habeas relief . . . is a
determination by the federal court that [petitioner’s] custody violates the
Constitution, laws, or treaties of the United States.” Rose v. Hodges , 423 U.S. 19,
21 (1975). The district court dismissed the § 2241 petition sua sponte ,
concluding that Zamarripa had failed to state a claim for federal habeas relief
because his petition did not allege a violation of the Constitution or laws or
treaties of the United States. The district court relied on Prows v. Federal Bureau
of Prisons , 981 F.2d 466, 469 (10th Cir. 1992) in which this court held that
“[n]othing in § 3624(c) indicates any intention to encroach upon the [BOP’s]
authority to decide where the prisoner may be confined during the pre-release
period.” Accordingly, Zamarripa has no right pursuant to § 3624(c) to placement
in any particular type of pre-release program.
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Upon review of Zamarripa’s appellate brief and de novo review of the
entire record on appeal, this court affirms the dismissal of Zamarripa’s § 2241
petition for substantially the reasons set forth in the magistrate judge’s Report and
Recommendation dated April 15, 2004 and the district court’s Order dated April
22, 2004.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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