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Heredia-Oliva v. Adler

June 20, 2010

ABRAHAM HEREDIA-OLIVA, PETITIONER,
v.
NEIL ADLER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DIRECTING THE CLERK TO SUBSTITUTE NEIL ADLER, WARDEN, AS RESPONDENT PURSUANT TO FED. R. CIV. P. 25(d)

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1)

ORDER DIRECTING THE CLERK TO ENTER JUDGMENT IN FAVOR OF RESPONDENT

Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to the parties' consent,*fn1 the matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73(b), and Local Rule 301. Pending before the Court is the petition, which was filed on July 21, 2009, in the District of Arizona, and transferred to this Court on September 18, 2009. Respondent filed an answer entitled as a response, on March 9, 2010. Petitioner filed a traverse, entitled "BRIEF ON REPLY TO RESPONDENT'S RESPONSE," on March 29, 2010.

I. Background

When the petition was initially filed, Petitioner was incarcerated at the Correctional Institution in California City, California (CICC). (Pet. 1.) In 2010, Petitioner was transferred to the Correctional Institution in Taft, California (TCI), where he is presently incarcerated. (Not., doc. 15.)

Petitioner is serving a sentence of fifty-one (51) months for having illegally reentered the United States after deportation in violation of 8 U.S.C. § 1326(a). (Resp. Att. 1, 2.) Petitioner was sentenced to thirty-six (36) months of supervised release after serving his term. (Id.) The judgment was pronounced on May 30, 2008. (Id. at 4.)

Petitioner's sole contention is that the Bureau of Prisons (BOP) erroneously calculated his good conduct time (GCT) pursuant to 18 U.S.C. § 3624(b). Petitioner argues that the statute requires the BOP to award fifty-four (54) days of GCT for each year of imprisonment to which Petitioner was sentenced instead of for each year actually served by Petitioner. Petitioner contends that if the statute were applied as he urges, then Petitioner's release date would change from November 15, 2010, to October 15, 2010. (Pet. 6.)

II. Subject Matter Jurisdiction

Respondent correctly concedes that this action, which concerns alleged violations of federal law making conditions, place, or duration of confinement illegal, was properly brought pursuant to 28 U.S.C. § 2241. (Resp. 3.) Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Although a federal prisoner who challenges the validity or constitutionality of his conviction must file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255, a federal prisoner challenging the manner, location, or conditions of the execution of a sentence must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). A district court has subject matter jurisdiction pursuant to § 2241 over a claim concerning the BOP's failure to consider whether a prisoner was entitled to time credit because such a challenge is to the manner in which the sentence is being executed. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991).

III. Jurisdiction over Respondent and Substitution of Neil Adler, Warden, as Respondent

Title 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). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Id.; Rumsfeld v. Padilla, 542 U.S. 426, 446-47 (2004). 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 Ex parte Mitsuye Endo, 323 U.S. 283, 305 (1944); Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990). A failure to name and serve the custodian deprives the Court of personal jurisdiction. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).

Here, Petitioner was incarcerated within the district at the time the petition was filed, and he is presently incarcerated in the district.

The petition names John Sugrue, Warden of CICC, as Respondent. Respondent notes that since Petitioner's transfer to TCI, Petitioner's immediate custodian has been Neil Adler. (Resp. 2.) Respondent then waives any objection "on this basis," (Resp. 2), which the Court finds is reasonably ...


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