UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Pornchai Moontri

v. Civil No. 06-cv-122-SM

Jeffrey Merrill, Warden,

Maine State Prison, et al.

REPORT AND RECOMMENDATION

Pornchai Moontri has filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 alleging that his

incarceration in the United States violates his rights under the

Convention for the Transfer of Sentenced Persons (“The

Convention”) and that he has been discriminated against because

he is Asian. The petition is before me for preliminary review to

determine, among other things, whether it states a claim upon

which relief might be granted. See United States District Court

for the District of New Hampshire Local Rule (“LR”) 4.3(d)(2); 28

U.S.C. § 1915A(a). For the reasons discussed herein, I recommend

that Moontri’s petition be dismissed.

Standard of Review

Under this court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

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magistrate judge is directed to conduct a preliminary review and

to prepare a report and recommendation advising the district 

judge whether the action, or any portion thereof, should be

dismissed because:

(i) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to state

a claim upon which relief may be granted, or seeks 

monetary relief from a defendant who is immune 

from such relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the petitioner and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

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(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background

Pornchai Moontri, a citizen and legal resident of Thailand,

was convicted in a Maine Superior Court of two counts of murder

in 1993 and sentenced to forty-five years in prison. In 1994,

Moontri was told by officials from the Immigration and

Naturalization Service that he would be deported, but no steps

have been taken toward Moontri’s deportation to date. At some

point during his incarceration, Moontri was transferred to New

Hampshire to serve his Maine sentence. Moontri now seeks

immediate deportation to Thailand. 

Moontri further alleges that he has the right to be

transferred to his home country under the Convention, which

provides for the transfer of foreign prisoners to their home

countries. 18 U.S.C. §§ 4100 et seq. Moontri alleges that all

of the Asian prisoners in the MDOC are discriminated against and

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1Although Moontri’s petition invokes 28 U.S.C. § 2254, the

relief he seeks may instead be cognizable under 28 U.S.C. § 2241. 

Section 2254 confers jurisdiction on this Court to issue “writs

of habeas corpus on behalf of a person in custody pursuant to the

judgment of a State court . . . on the ground that he is in

custody in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2254(a). Section 2241 confers

jurisdiction on this Court to issue writs of habeas corpus in

response to a petition from a state or federal prisoner who “is

in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. §§ 2241(a) and (c)(3). Some

federal courts of appeals have found that an action by a person

in state custody challenging the execution of their sentence must

be brought under § 2254 rather than § 2241. See Rossney v.

Travis, 2003 WL 135692 at *5 (S.D.N.Y. Jan. 17, 2003) (collecting

cases), while other courts have found that a state prisoner’s

challenge to the execution of his sentence, rather than to its

fact or duration, must be brought under § 2241. See e.g.,

Henderson v. Scott, 260 F.3d 1213, 1214 (10th Cir. 2001). The

First Circuit has not yet decided this issue. Because I

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subjected to out-of-state transfers and false allegations of

wrongdoing by MDOC officials. Moontri alleges that he was denied

transfer to Thailand as a result of alleged racial and national

origin discrimination perpetrated by MDOC and federal immigration

officials. 

Discussion

Section 2254 confers jurisdiction on this Court to issue

“writs of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court . . . on the ground that he is

in custody in violation of the Constitution or laws or treaties

of the United States.”1 28 U.S.C. § 2254(a). Accordingly,

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recommend that Moontri’s petition be dismissed based on his

failure to allege that the execution of his sentence violates an

enforceable right, there is no need to resolve the issue at this

time.

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Moontri must allege that his custody violates some right accorded

to him under the federal law, the Constitution, or treaties

entered into by the United States. Moontri alleges that he has a

right under the Convention to be transferred to his home country

for the service of his sentence.

The Convention authorizes the Attorney General of the United

States to implement a transfer of a prisoner to his or her home

country to serve a sentence pursuant to a treaty entered into

between the sending and receiving country when the prisoner

consents to such transfer, and the sentence is being served for a

crime that is a criminal offense in the receiving country. 18

U.S.C. §§ 4100(b), 4102(3). However, the Convention rests the

discretion for such a transfer solely in the Attorney General,

and does not set out particularized standards or criteria for

such transfer. Bagguley v. Bush, 953 F.2d 660, 662 (D.C. Cir.

1991), cert. denied, Bagguley v. United States, 503 U.S. 995

(1992). Accordingly, there are no limits on the official

discretion accorded the Attorney General in transfer decisions. 

Id. As a result, Moontri’s claim that he has a right or

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2In this case it appears that the appropriate court to hear

the discrimination claim is the United States District Court for

the District of Maine as that court has personal jurisdiction

over the MDOC officials.

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protected liberty interest that accrues under the Convention

fails. See id. Because he has not alleged that his

incarceration violates any right or protected liberty interest, I

recommend that his § 2254 petition be denied.

Moontri further alleges that federal and Maine state

officials have engaged in discrimination against all of the Asian

prisoners in the MDOC. These bald allegations, even liberally

construed, are not sufficient to allege that Moontri’s

incarceration violates any federal right against discrimination. 

To the extent that Moontri seeks to state a claim alleging racial

or national origin discrimination in the conditions of his

confinement, such a claim must be brought by filing a separate

civil rights action under 42 U.S.C. § 1983 in a court of

appropriate jurisdiction.2 Such a claim is not properly raised

in a habeas petition, as habeas relief is not available for

challenges to the conditions of a prisoner’s confinement if the

challenge is unrelated to the fact or length of the prisoner’s

custody. Preiser v. Rodriquez, 411 U.S. 475, 489-99 (1973);

Wolff v. McDonnell, 418 U.S. 539, 554 (1974). Accordingly, I

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recommend that the civil rights discrimination claim be

dismissed.

Conclusion

For the foregoing reasons, I recommend that Moontri’s

petition be dismissed in its entirety. Any objections to this

Report and Recommendation must be filed within ten (10) days of

receipt of this notice. Failure to file objections within the

specified time waives the right to appeal the district court’s

order. See Unauthorized Practice of Law Comm. v. Gordon, 979

F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 19, 2006

cc: Pornchai Moontri, pro se

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