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Jimenez-Gamino v. Adler

March 15, 2010

JOAQUIN JIMENEZ-GAMINO, PETITIONER,
v.
NEIL H. ADLER, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDING AND RECOMMENDATIONS REGARDING RESPONDENT'S MOTION TO DISMISS

[Doc. 15]

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

BACKGROUND

On March 10, 2005, Petitioner was arrested by the Santa Maria Police Department for possessing methamphetamine for sale, and later convicted. (Petition, at 17.) On July 25, 2005, Petitioner was sentenced to eight years in state prison for the offense. (Id.)

On April 24, 2007, the Immigrations and Customs Enforcement learned that Petitioner was in state prison. (Id.) On June 8, 2007, Petitioner was transferred to federal custody to face federal charges for Illegal Re-entry.

On January 7, 2008, Petitioner was sentenced by the United States District Court for the Central District of California to fifty-one (51) months imprisonment. (Petition, Exhibit A.) The sentencing court ordered that the federal sentence was to be served "concurrently" with his "undischarged" term of imprisonment in the County of Santa Barbara.

In the instant petition, Petitioner requests that this Court order Respondent to credit him time towards his federal sentence for the period of time From March 10, 2005 through January 6, 2008 when he was serving his state sentence.

On January 28, 2010, Respondent filed a motion to dismiss the instant petition arguing Petitioner has received all available credit toward his federal sentence. (Court Doc. 15.) The Court construes Respondent's motion to dismiss as an answer to the petition. Petitioner did not file an opposition.

DISCUSSION

I. Standard of Review

Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a federal prisoner can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Petitioner's claims are proper under 28 U.S.C. § 2241 and not 28 U.S.C. § 2255 because they concern the manner, location, or conditions of the execution of petitioner's sentence and not the fact of petitioner's conviction or sentence. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir.1990) (stating that a challenge to the execution of a sentence is "maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241"); Montano-Figueroa v. Crabtree, 162 F.3d 548, 549 (9th Cir.1998) (per curiam) (allowing a federal prisoner to use § 2241 to challenge the BOP's restitution policies).

Further, Petitioner is challenging the execution of his sentence at the Taft Correctional Institution in Taft, California, which is within the Fresno Division of the Eastern District of California; therefore, the Court has jurisdiction over this ...


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