Miguel Martel-martinez, Petitioner-appellant, v. Janet Reno, U.S. Attorney General; United States Attorneygeneral; Gerald Shur, Director, Office Ofenforcement Operations; United Statesdepartment of Justice,respondents-appellees, 61 F.3d 916 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

BARRETT

After examining the briefs 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); Tenth Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Miguel Martel-Martinez (Martel), appearing pro se and in forma pauperis, appeals from the district court's Order accepting the recommendation of the United States Magistrate Judge over Martel's objections and dismissing Martel's mandamus action.

Martel is serving a sentence of 168 months with a five-year term of supervised release at the Federal Correctional Institute in Florence, Colorado, following his June 9, 1992, guilty plea to one count of possession with intent to distribute five (5) kilograms or more of cocaine, in violation of 21 U.S.C. 841(a) (1) and 841(b) (1) (A). On direct appeal, his conviction was affirmed. See United States v. Martel-Martinez, 988 F.2d 855 (8th Cir. 1993). In a subsequent search of the vehicle Martel was operating when arrested, police found 52.15 kilograms of cocaine in 48 wrapped packages which had been concealed inside a hidden compartment.

Martel, a Mexican national, filed a Petition for Writ of Mandamus in the district court after he was informed that the Department of Justice advised the Embassy of Mexico that the United States would not permit his transfer to the Mexican prison system based on the seriousness of the offense he committed. Martel sought an order compelling the Attorney General and others to authorize his request for transfer to the United Mexican States to serve the balance of his prison sentence, arguing that the Treaty Between the United States of America and the United Mexican States on the Execution of Penal Sentences, November 25, 1976, T.I.A.S. nO. 8718, and the Act, 18 U.S.C. 4000, et seq., particularly Article IV(4), mandate the transfer.

The magistrate judge found that the only standard created by the Treaty and Act is whether the authority in the transferring state finds the transfer to be "appropriate," and that this language vests complete discretion in the Attorney General. The district court agreed, as do we.

On appeal, Martel contends that (1) the Attorney General failed to follow the mandated criteria under the Treaty on the execution of penal sentences, (2) the history of the Mexican Treaty shows that a duty is owed to Martel, and (3) Mandamus is a proper remedy because Martel has a clear right to be transferred to the Mexican prison system.

In two unpublished opinions, this court has made it clear that mandamus will issue only to compel the performance of a clear non-discretionary duty, and that the Attorney General's decisions under the Treaty and Act are entirely discretionary. In Lopez-Ortiz v. Reno, U.S. Attorney General, et al., 57 F.3d 1080 (10th Cir., June 19, 1995), we held that Article IV, sections 2 and 4 make it clear that they "... vest the Executive branch with discretion to decide whether a transfer is appropriate." In Garcia v. Reno, Attorney General of the United States, 56 F.3d 77 (10th Cir., May 23, 1995), we affirmed the recommendation of the United States Magistrate Judge who found that (1) the Attorney General has no duty under the Treaty or the Act to promulgate regulations regarding the transfer of prisoners, (2) Article IV(2) of the Treaty sets forth the requirements for transfer which are clearly discretionary, (3) plaintiffs have no liberty interest in transfers under the Treaty, and (4) the Attorney General's action in denying a request for transfer is not a reviewable agency action because the agency's action is committed to agency discretion by law.

We AFFIRM substantially for the reason set forth in the Recommendation of the United States Magistrate Judge entered February 7, 1995, and the Order of the district court entered February 28, 1995.