Carlos Franco v. BUREAU OF PRISONS (B.O.P.) On Appeal From the United States District Court For the…

CLD-35
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2783
______________
CARLOS FRANCO,
Appellant,
v.
BUREAU OF PRISONS (B.O.P.)
__________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil No. 05-cv-05077)
District Judge: Honorable Robert B. Kugler
_____________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
November 2, 2006
Before: RENDELL, SMITH and COWEN, Circuit Judges
(Filed: December 7, 2006)
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OPINION OF THE COURT
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PER CURIAM
Appellant, Carlos Franco, appeals from the District Court’s dismissal under 28
U.S.C. § 1915(e)(2) of his motion for a writ of mandamus under 28 U.S.C. § 1361
seeking to compel the Bureau of Prisons to transfer him from New Jersey to California.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291, reviewing the District

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Court’s mandamus decision for abuse of discretion, except for any non-discretionary
elements, which are subject to de novo review. Stehney v. Perry, 101 F.3d 925, 929 (3d
Cir. 1996). We note that “[m]andamus is an extraordinary remedy that can only be
granted where a legal duty ‘is positively commanded and so plainly prescribed as to be
free from doubt.’” Appalachian States Low-Level Radioactive Waste Com’n v. O’Leary,
93 F.3d 103, 112 n.9 (3d Cir. 1996) (quoting Harmon Cove Condominium Ass’n, Inc. v.
Marsh, 815 F.2d 949, 951 (3d Cir. 1987)).
Here, the District Court was clearly correct in dismissing Franco’s petition.
Prisoners do not have a constitutionally protected liberty interest under the Due Process
Clause in either the place of their confinement or in prison transfers. See Olim v.
Wakinekona, 461 U.S. 238, 245-48 (1983). Equally meritless is Franco’s claim that the
Bureau of Prisons transfer policy violates the Equal Protection Clause. The “nearer to
release” transfer guidelines that he challenges do not result in aliens as a group being
treated differently from other persons. Rather, as the District Court explained, the policy
distinguishes between prisoners subject to INS Detainers or other custodial considerations
and those who are not. Cf. McLean v. Crabtree, 173 F.3d 1176, 1185-86 (9th Cir. 1999).
The District Court properly applied rational basis review and rejected Franco’s Equal
Protection challenge.
Because this appeal lacks arguable merit, we will dismiss it under 28 U.S.C.
§ 1915(e)(2)(B).

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