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Bustos v. United States

September 11, 2008

HOMERO ALFARO BUSTOS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

[Doc. 1]

BACKGROUND

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

On November 1, 2007, Petitioner filed a motion to intervene and issue an order for the appropriate application of 18 U.S.C. § 3624(b)(1)(2), in the United States District Court for the Southern District of California, which was construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

Petitioner contends that the Bureau of Prisons ("BOP") is unlawfully calculating certain "good time credit" that would reduce the length of his sentence. Respondent filed an answer to the petition on December 21, 2007. (Court Doc. 5.) The petition was transferred to this Court on July 22, 2008. (Court Doc. 6.)

As submitted by Respondent in its answer, on March 3, 1997, a federal grand jury in the Central District of California returned an indictment against Petitioner and three co-defendants, charging Petitioner with one count of conspiring to distribute methamphetamine (count one) and two counts of possession with intent to distribute methamphetamine (counts three and four).

On December 3, 1997, Petitioner signed a written plea agreement and pled guilty to count one of the indictment. On March 13, 1998, Petitioner was sentenced to a term of 168 months imprisonment and a five-year period of supervised release. Petitioner's projected release date is May 9, 2009.

DISCUSSION

A. Jurisdiction

Habeas corpus relief is appropriate when a person "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution.

With respect to jurisdiction over the person, 28 U.S.C. § 2241(a) provides that writs of habeas corpus may be granted by the district courts "within their respective jurisdictions." A writ of habeas corpus operates not upon the prisoner, but upon the prisoner's custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-495 (1973). A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). It is sufficient if the custodian is within the territorial jurisdiction of the court at the time the petition is filed; transfer of the petitioner thereafter does not defeat personal jurisdiction that has once been properly established. Ahrens v. Clark, 335 U.S. 188, 193 (1948), overruled on other grounds in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. at 193, citing Mitsuye Endo, 323 U.S. 283, 305 (1944); Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990).

Review of the petition shows that Petitioner is incarcerated at the Taft Correctional Institution which is within the territorial jurisdiction of this Court. Accordingly, ...


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