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Duenez v. Adler

February 6, 2009

GERMAN DUENEZ, PETITIONER,
v.
NEIL H. ADLER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Theresa A. Goldner United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS PETITION (Doc. 10) ) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS

ORDER DENYING AS MOOT PETITIONER'S MOTION TO EXPEDITE DECISION

(Doc. 17)

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

FACTUAL AND PROCEDURAL HISTORY

Petitioner was arrested on January 12, 2001 by the New York Police Department. (Doc. 11, Exh. D). From January 12, 2001, until December 20, 2001, Petitioner was in the continuous custody of New York state authorities. (Id.).*fn1 On December 20, 2001, Petitioner was sentenced on drug charges by the State of New York to a term of three to nine years in prison. (Id.). On March 8, 2002, United States Marshals "borrowed" Petitioner under a writ of habeas corpus ad prosequendum ("writ of prosecution") and transported him to the United States District Court for the Central District of California. (Id.). On August 18, 2003, Petitioner was convicted and sentenced in the Central District of California to three concurrent terms of 114 months, to run concurrently with each other and with the New York state sentence. (Id.). On September 5, 2003, Petitioner was returned to New York to continue serving his state sentence. (Id.). On February 26, 2004, Petitioner was returned to federal custody after being paroled on his New York state prison term. (Id.). He was transported to the Taft Correctional Institution ("TCI") in Taft, California, where he is currently incarcerated. (Id.).

Petitioner filed the instant federal petition for writ of habeas corpus on November 29, 2007, alleging that he has been improperly denied credit against his federal sentence. (Doc. 1). The Court ordered Respondent to file a response to the claims in the petition on January 22, 2008. (Doc. 6). Respondent filed the instant motion to dismiss on March 21, 2008. (Doc. 10). Petitioner's opposition to the motion, titled as a traverse, was filed on April 14, 2008. (Doc. 13). On April 14, 2008, Respondent file a reply to Petitioner's traverse (Doc. 14), and on May 1, 2008, Petitioner filed his reply to Respondent's reply. (Doc. 15). On October 31, 2008, Petitioner filed a motion for an expedited decision. (Doc. 17).

JURISDICTION

Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity or constitutionality of his conviction must bring a petition for writ of habeas corpus under 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See e.g., Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-894 (6th Cir. 1991); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). To receive relief under 28 U.S.C. § 2241 a petitioner in federal custody must show that his sentence is being executed in an illegal, but not necessarily unconstitutional, manner. See e.g., Clark v. Floyd, 80 F.3d 371, 372, 374 (9th Cir. 1996) (contending time spent in state custody should be credited toward federal custody); Jalili, 925 F.2d at 893-894 (asserting petitioner should be housed at a community treatment center); Barden v. Keohane, 921 F.2d 476, 479 (3d Cir. 1990) (arguing Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in state custody); Brown, 610 F.2d at 677 (challenging content of inaccurate pre-sentence report used to deny parol). 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, 610 F.2d at 677.

In this case, Petitioner alleges that he is being unlawfully denied credit against his federal sentence. Petitioner is challenging the execution of his sentence rather than its imposition. Thus, his petition is proper under 28 U.S.C. § 2241. In addition, because Petitioner is incarcerated at TCI in Taft, California, which is within the Eastern District of California, Fresno Division, this Court has jurisdiction to proceed.

A. Procedural Grounds for Motion to Dismiss

Respondent has filed the instant motion to dismiss the petition as containing unexhausted claims and also as lacking merit. Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases.

The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-603 (9th Cir. 1989)(using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the court should use Rule 4 standards to review the motion.

In this case, Respondent's motion to dismiss is based on a two-fold argument: (1) lack of exhaustion of administrative remedies, and (2) failure to state a claim for relief under 28 U.S.C. § 2241. Insofar as Respondent claims a lack of exhaustion, Respondent's motion to dismiss is similar in procedural standing to the type of motion to dismiss approved by the Ninth Circuit. However, to the extent that the motion contends that dismissal is appropriate because Petitioner fails to state a claim for relief, Respondent, in essence, seeks a dispositive ruling on the merits of the petition's claims, and thus is more in the nature of an answer to the petition than a traditional motion to dismiss. It appears that Petitioner appreciated this fact when he styled his response to the motion to dismiss as a "traverse." (Doc. 13). In that traverse, Petitioner addresses the merits of his petition. Subsequently, both parties filed additional responses, all on the merits of the petition's claims.

Although this procedural posture for a motion to dismiss is somewhat unconventional, because both parties have had ample opportunity to fully brief what is, ultimately, a question of law applied to undisputed facts, the Court will address the exhaustion issue as a motion for dismissal, and will address Respondent's argument ...


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