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Olivo v. Reese

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 2, 2009

AUGUSTINE OLIVO, PETITIONER,
v.
CONSTANCE REESE, WARDEN, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner, a federal prisoner proceeding pro se, filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241, regarding the execution of his sentence.*fn1 Petitioner challenged the Bureau of Prison's refusal to "consider inmates for immediate placement into RCC*fn2 pursuant to the factors listed under 18 U.S.C. 3621(b)...." Petition, p. 2. Respondent's motion to dismiss the petition as premature was unopposed and was granted, and judgment thereon entered, on September 16, 2008.*fn3 In the Order dismissing the case, the district judge stated:

Because Olivo raises the same arguments that have been raised in Rodriguez v. Smith, 2007 WL 1521045 (E.D. Cal 2007), presently pending on appeal to the Ninth Circuit, and as explained in respondents' motion, if respondents prevail Olivo's petition will be meritless, but if respondents do not prevail, they will honor the Ninth Circuit's decision and Olivo's petition will not be necessary.

Order, filed on September 16, 2008, pp. 1-2.

Subsequently, petitioner has requested reconsideration of the dismissal based on his contention that the Ninth Circuit had published its decision in Rodriguez prior to the issuance of the order dismissing the instant case. This matter has been referred to the undersigned "for further findings and recommendations in light of plaintiff's representation that the Court of Appeals' opinion in Rodriguez v. Smith, No. 07-16014, was filed prior to this court's order of September 15, 2008."*fn4 Order, filed on January 30, 2008.

This court now takes judicial notice*fn5 of the fact that the decision in Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008),*fn6 was filed on September 4, 2008, a few days prior to the issuance of the order dismissing this case. In light of this fact and the reference by the district judge, it appears that the requests to reconsider the dismissal of this case have been granted. In Rodriguez, the court concluded that BOP regulations were in "conflict with the plain language of 18 U.S.C. § 3621(b) as to when an inmate may be considered for initial placement in or transfer to an RCC." 541 F.3d at 1189. The court will now direct respondent to provide a response to petitioner's contention that his petition should proceed because the respondents have failed to honor the Ninth Circuit's decision in Rodriquez.

Accordingly, IT IS HEREBY ORDERED that respondent must, within twenty days, file their response to petitioner's contentions within his reconsideration requests (docket nos. 20 through 22); thereafter, petitioner will have twenty days to file a reply.


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