                                                                         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Order and Judgment is not binding precedent, except under the doctrines of law of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2004) (unpublished), cert.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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