ORDER

JAMES G. CARR, District Judge.

This is a federal prisoner's habeas case under 28 U.S.C. § 2241.

The petitioner, Jorge Bonilla Mesa, is serving a sentence at the Federal Correctional Institution in Elkton, Ohio. Mesa, an alien subject to removal from the United States, alleges that a detainer that Immigration and Customs Enforcement issued, in anticipation of his removal to Cuba, is invalid. (Doc. 1 at 1, 5). He also seeks a transfer to a federal prison in Florida and contends that his imprisonment has caused an "atypical and significant hardship." (Id. at 5).

Pending is Magistrate Judge Baughman's Report and Recommendation, which recommends that I grant the Warden's motion to dismiss under Fed. R. Civ. P. 12(b)(6). (Doc. 14). The Magistrate Judge advised Mesa to file his objections by September 25, 2018, but that deadline has passed without a filing by Mesa.

Because Mesa has not filed an objection, he has waived his right to a de novo review of the R&R. Collins v. Comm'r of Soc. Sec., 2016 WL 4729299, *1 (N.D. Ohio 2016) (Lioi, J.). Nevertheless, I have undertaken a de novo review of the R&R and concur with the Magistrate Judge's assessment that Mesa has not stated a claim on which relief may be granted. Dismissal of the petition under Rule 12(b)(6) is therefore appropriate.

It is, therefore,

ORDERED THAT:

So ordered.

REPORT & RECOMMENDATION

Introduction

Before me by referral1 is the pro se petition of Jorge Bonilla Mesa for a writ of habeas corpus under 28 U.S.C. § 2241.2 The government, responding for Warden Steven Merlak and the United States Immigration and Customs Enforcement ("ICE"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, has moved to dismiss the petition for failure to state a claim upon which relief may be granted.3 Mesa has responded in opposition to the motion.4 For the reasons that follow, I will recommend that the motion be granted and that the petition be dismissed.

Facts

The facts relevant to adjudicating this motion are few, straightforward, and not in dispute. Mesa is a citizen of Cuba currently incarcerated at the Federal Correctional Institution, Elkton in Lisbon, Ohio ("FCI Elkton").5 After his 2010 conviction and sentencing in federal court on multiple drug-related charges, ICE issued a detainer in — notifying the Bureau of Prisons that Mesa was an alien subject to removal from the United States.6

In 2016, Mesa filed an administrative grievance asking the warden of FCI Elkton to transfer him to Florida.7 Relying on regulations of the Federal Bureau of Prisons, the warden determined that Mesa was ineligible for a transfer because of the ICE detainer.8 Mesa unsuccessfully appealed that decision in the administrative channels.9

On August 11, 2017, Mesa filed this petition for a writ of habeas corpus.10 In his petition, Mesa argues that:

Analysis

A. Standard of review

In adjudicating a motion to dismiss for failure to state a claim upon which relief may be granted, the court is required to "accept all well-pleaded allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff."14 Although the complaint need not contain "detailed factual allegations," it does require more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action."15 Thus, a complaint survives a motion to dismiss if it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."16 In that regard, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."17

B. Application of standard

1. ICE detainer

The government asserts that because Mesa is not in custody of ICE, habeas relief is not available to challenge an ICE detainer.18 As numerous federal cases hold, a prisoner serving a sentence for a criminal conviction is "in custody" of the prison for that offense and not because ICE has lodged a detainer against him with the prison.19 Here, Mesa is in custody of the Bureau of Prisons as a result of his 2010 conviction and not in ICE custody on immigration charges.20 Consequently, this Court has no jurisdiction over a habeas petition directed to ICE as the result of any detainer,21 which "merely notifies prison officials that a decision regarding his deportation will be made by the INS at some future date."22

2. Transfer/classification

The United States Supreme Court has definitively held that a prisoner has no constitutional right to be housed in a particular prison or state.23 Moreover, "transfers and prison assignments are functions wholly within the discretion of the BOP."24

Further, prisoner classifications are matters delegated by Congress to the discretion of federal prison officials and thus implicate "no legitimate statutory or constitutional entitlement. . . ."25 Accordingly, a habeas petitioner who challenges his prison security classification fails to state a claim upon which relief may be granted.26

In addition, courts have uniformly considered and rejected Mesa's specific argument that because the United States does not deport anyone to Cuba, it is a violation of due process or equal protection to classify him, a Cuban citizen, as a deportable alien.27 The fact that he may not actually be deported "does not give rise to a constitutional claim"28 and "is of no consequence."29

3. Extraordinary treatment/due process

The United States Supreme Court has recognized that a prisoner may have a due process claim if an action of the BOP creates an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."30 However, the mere fact that an inmate is incarcerated in a location at some distance from family such that visitations are difficult is not so unusual as to create a due process claim.

In Reyes v. Holland,31 the federal district court in Kentucky rejected precisely the same argument advanced here by Mesa. There, the federal prisoner, who, like Mesa, was a deportable alien, requested a transfer from a prison in Kentucky to one in California so as to be closer to his family.32 The BOP denied the transfer request, citing the fact that, as here, the prisoner was a deportable alien.33 The district court upheld the decision of the BOP, finding that although the prisoner was at a distance from his family, "the BOP's denial of his request [for a transfer did] not create an atypical and significant hardship in relation to the ordinary incidents of prison life."34

Mesa's situation is identical to that of the prisoner in Reyes. His request for a transfer on due process grounds should likewise be rejected for the same reasons articulated in that decision.

Conclusion

For the reasons stated above, the motion35 by defendants Warden Merlak and ICE to dismiss Mesa's petition for failing to state a claim upon which relief can be granted should be granted. If that recommendation is accepted, the petition itself36 should be dismissed in its entirety with prejudice.

Objections

Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order.37