REPORT AND RECOMMENDATION ON PETITION UNDER 28 U.S.C. § 2255 FOR A WRIT OF HABEAS CORPUS (#81)

M. PAGE KELLEY, Magistrate Judge.

Joseph E. Penachio, ("Penachio" or "petitioner"), petitions for a writ of habeas corpus under 28 U.S.C. § 2255. In his petition, Penachio lists one ground as the basis for a writ of habeas corpus, stating that "[t]he Court's sentence and plea agreement have been frustrated because of an Administrative error." (#81 at 4.)

I. BACKGROUND

On March 5, 2014, Penachio pled guilty to Count One of an indictment charging him with the attempted manufacture of methamphetamine in violation of 21 U.S.C. § 846 and § 841(a)(1). (#63, #3 at 1.) On July 9, 2014, Judge Nathaniel M. Gorton imposed a sentence of twenty-four months imprisonment, with four years of supervised release to follow, with a special condition that defendant participate in drug mental health treatment programs at the direction of the Probation Office. The Court also ordered the petitioner to pay $7,095.08 in restitution. (#75.) The sentence was well below the advisory guideline range of 87-108 months. (#78 at 11, #83 at 1.) In the Judgment, the Court accepted "the government's recommendation to downwardly depart because 1) the defendant's criminal history category overstates the seriousness of his record, 2) the offense level calculation overstates the seriousness of the offense and 3) defendant's unfortunate upbringing and mental problems." (#78 at 13.) The Court also recommended the petitioner participate in a mental health treatment program while in custody, as well as in the Bureau of Prisons ("BOP") Residential Drug Abuse Program, "due to the defendant's substance abuse history and based on an informal pre-screening performed by the Probation Office." Id. at 3.

II. ANALYSIS

A. Overview of the Claim

In his petition, Penachio states that the Court specifically imposed a relatively lenient sentence and a lengthier period of supervised release so that he could get help for his psychological and drug problems. (#81 at 4.) The petitioner argues that while the Court recommended he be "afforded the opportunity to participate in the drug program run by the BOP," he was not transferred to the appropriate facility in time and as a consequence is now ineligible to participate in the drug program. Id. Petitioner asks the Court to vacate the sentence imposed, and to impose a sentence of home confinement for the remainder of the incarcerative period so that he might begin getting treatment. Id at 13.

The United States of America ("respondent" or "Government") counters that even assuming the facts alleged in the petition are true, petitioner is ineligible for relief because he alleges no violation under section 2255. (#83 at 4.)

B. Analysis of Claim

A prisoner may seek post conviction relief pursuant to 28 U.S.0 § 2255 if the sentence was imposed in violation of the Constitution or laws of the United States, or the court was without jurisdiction to impose such sentence, or the sentence was in excess of the maximum authorized by law, or is "otherwise subject to collateral attack . . ." 28 U.S.C. § 2255. A motion under § 2255 motion is generally cognizable "only if it involves `a fundamental defect [that] inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure.' United States v. Sevilla-Oyola, 770 F.3d 1, 12 (1st Cir. 2014) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). The petition here does not challenge the sentence imposed by the court. Instead, the crux of the petitioner's claim is that the execution of his sentence is improper. As the petitioner states, "[a]lthough Penachio was designated to a facility he was not transferred from the jail setting at Wyatt and his movement got lost in `red tape.' Now, because he has less than a year left on his sentence, he will not be eligible to participate in the drug program." (#81 at 4.) In essence, the petition alleges that the recommendation by the District Court for drug treatment has been frustrated by an administrative error of the BOP.

The government is correct in arguing that the Petitioner has not made out a claim under section 2255. He does not argue that his sentence was imposed in violation of the Constitution; that the sentencing court was without jurisdiction to sentence him; or that the sentence was in excess of the statutory maximum. Nor does he make any particularized argument that his sentence was in violation of the laws of the United States or is "otherwise subject to collateral attack." "It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for arguments, and put flesh on its bones." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) cert. denied, 494 U.S. 1082 (1990); see also United States v. Jiminez, 498 F.3d 82, 88 (1st Cir. 2007) ("[I]ssues adverted to in a perfunctory manner . . . are deemed waived.") (internal citation and quotation marks omitted).

Nor could petitioner have argued that his sentence was in violation of any law. A sentencing Court's recommendation that a defendant attend a specific program while incarcerated by the Bureau of Prisons is not enforceable. "A sentencing court can recommend that the BOP place an offender in a particular facility or program. See [18 U.S.C.] § 3582(a). But decisionmaking authority rests with the BOP." Tapia v. United States, 131 S.Ct. 2382, 2391 (2011) (emphasis in orginal). Thus, the fact that the Court's recommendation that the defendant attend the BOP's drug treatment program may have been frustrated by the BOP's action in leaving the defendant at a certain institution for too long would not, in any event, give defendant any cause of action.1

For the foregoing reasons, it is recommended that the petition be dismissed.

III. CONCLUSION

For all the above reasons, I RECOMMEND that (1) the petitioner's motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (#1) be DENIED, and (2) Final Judgment should be entered DISMISSING the action.

IV. REVIEW BY THE DISTRICT JUDGE

The parties are hereby advised that any party who objects to this recommendation must file a specific written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed. R. Civ. P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603(1st Cir. 1980); see also Thomas v. Am, 474 U.S. 140 (1985).