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Arredondo-Virula v. Adler

July 14, 2010

OSCAR ARREDONDO-VIRULA, PETITIONER,
v.
NEIL H. ADLER, WARDEN, RESPONDENT.



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

ORDER DEEMING RESPONDENT'S MOTION TO DISMISS TO BE AN ANSWER TO THE PETITION (DOC. 12) FINDINGS AND RECOMMENDATION TO DENY THE PETITION FOR WRIT OF HABEAS CORPU8S (DOC. 1) OBJECTIONS DUE WITHIN THIRTY (30) DAYS

Petitioner is a federal prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is Respondent's motion to dismiss the petition filed on March 11, 2010. On April 22, 2010, Petitioner filed documents entitled "PETITIONER'S MOTION TO DISMISS RESPONDENT'S MOTION TO DISMISS ARTICULATED PURSUANT TO FRCP 12(B)(6)" (doc. 14, 1), in which Petitioner opposed Respondent' motion to dismiss. (Id. at 1.) No reply was filed.

I. Jurisdiction

A. Subject Matter Jurisdiction

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).

Here, Petitioner alleges that he was denied due process of law under the Fifth Amendment in connection with a prison disciplinary hearing and seeks expungement of the finding and restoration of good-time credits and visitation privileges lost as a result of the finding. (Pet. 9.) A due process claim concerning parole, good time, or other rules administered by a prison or penal administrator that challenges the duration of a sentence is a cognizable claim of being in custody in violation of the Constitution pursuant to 28 U.S.C. § 2241(c)(3). See, e.g., Superintendent v. Hill, 472 U.S. 445, 454 (1985) (determining procedural due process claim concerning disciplinary procedures and findings); Wilkinson v. Dotson, 544 U.S. 74, 88 (2005) (Kennedy, J., dissenting). If a constitutional violation has resulted in the loss of time credits, it affects the duration of a sentence, and the violation may be remedied by way of a petition for writ of habeas corpus. Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990).

Accordingly, the Court concludes that it has subject matter jurisdiction over the petition.

B. Jurisdiction over the Person

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 § 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 in 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). 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, at all pertinent times, Petitioner was incarcerated at the Taft Correctional Institution (TCI), which is located within the Eastern District of California. Petitioner named Neil H. Adler, the Warden of TCI, as Respondent.

Accordingly, the Court concludes that it has personal jurisdiction over the custodian.

II. Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) In the motion before the Court, Respondent purports to proceed pursuant to Fed. R. Civ. P. 12(b)(6), which provides for the making of a motion to dismiss for failure to state a claim upon which relief can be granted. Such a motion tests the legal sufficiency of the claim or claims stated in the complaint. In considering a motion under Fed. R. Civ. P. 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiff; accept all well-pleaded factual allegations as true; and determine whether the plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

The Federal Rules of Civil Procedure are not necessarily fully applicable to the present proceeding. The rules governing civil procedure may be applied to a proceeding governed by the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) to the extent that they are not inconsistent with any statutory provisions or the rules governing cases brought pursuant to 28 U.S.C. §§ 2254 or 2255, and where the practice in habeas proceedings has previously conformed to the practice in civil actions. Habeas Rule 12;*fn1 Fed. R. Civ. P. 81(a)(4). The advisory committee's notes caution that the civil rules apply only when it would be appropriate and would not be inconsistent or inequitable in the overall framework of habeas corpus. Habeas Rule 12 Advisory Committee's Note; Mayle v. Felix, 545 U.S. 644, 654-655 n. 4 (2005).

The Supreme Court has characterized as erroneous the view that a Rule 12(b)(6) motion is appropriate in a habeas corpus proceeding. See, Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 269 n. 14 (1978). However, in light of the broad language of Rule 4, it has been held in this circuit that motions to dismiss are appropriate in cases that proceed pursuant to 28 U.S.C. § 2254 and present issues of failure to exhaust state remedies, O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990 (a motion to dismiss for failure to raise any issue of federal law, which was based on the insufficiency of the facts as alleged in the petition to justify relief as a matter of law, was evaluated under Rule 4); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (procedural default in state court); Hillery v. Pulley, 533 F.Supp. 1189, 1194 n. 12 (E.D.Cal. 1982) (a motion to dismiss for failure to exhaust state remedies was appropriately considered after receipt of evidence pursuant to Rule 7(a) to clarify whether or not the possible defect, not apparent on the face of the petition, might preclude a hearing on the merits, and after the district court had determined that summary dismissal was inappropriate).

In the present case, the Court has already undertaken to screen the petition pursuant to Habeas Rule 4, which requires the Court to dismiss a petition if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. The Court necessarily had to screen the petition before it issued its order of January 13, 2010, directing Respondent to file a response to the petition. Thus, proceeding pursuant to Rule 12(b)(6) would be repetitive and unnecessary.

In response to the motion, Petitioner argues that the allegations of the petition are sufficient to state a claim, and he cites to supporting cases. (Opp. 3-5.) In the petition it is alleged that a prison administrator's disciplinary finding that Petitioner violated Prohibited Act Code 205 by engaging in sexual acts violated Petitioner's right to due process of law because the finding was 1) unsupported by some evidence of guilt, and 2) imposed not by an employee of the Bureau of Prisons (BOP), but rather by an employee of a private corporation that managed the prison who lacked the legal authority to impose discipline. Petitioner does not dispute the authenticity of the record of the proceedings that was submitted by Respondent in support of the motion to dismiss except to challenge the reliability of the principal evidence of his having committed the prohibited act, namely, an alleged admission made when exiting the visitation room that the bulge in his pants was from contact with a female visitor. Petitioner argues that the evidence, which was relied upon by the prison's hearing officer, was impossible or inherently improbable due to a language barrier between the officer and Petitioner and thus was insufficient to constitute the required "some evidence" to support the disciplinary finding. (Pet. 3.)

In a manner inconsistent with a motion pursuant to Rule 12(b)(6), Respondent submitted evidence extraneous to the petition, including documentation of not only the disciplinary process but also the employment of the disciplinary hearing officer and his certification status with respect to acting as a hearing officer. (Mot. Exs. A-D.) Respondent addresses the merits of the constitutional adequacy of the disciplinary process and the evidence relied upon as well as the issue concerning the hearing officer's legal authority to proceed. (Mot. 4-8.)

The Court therefore concludes that Respondent is actually arguing the merits of the petition. The factual matter set forth in support of the motion to dismiss actually serves as an answer in this proceeding. Review of all the papers reveals that Petitioner does not dispute the factual record, but rather argues that the proceedings and evidence reflected therein were constitutionally inadequate.

A court has inherent power to control its docket and the disposition of its cases with economy of time and effort for both the court and the parties. Landis v. North American Co., 299 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Given the positions of the parties, the Court concludes that it would be wasteful of the resources of the parties and the Court simply to consider the motion to dismiss on narrow, strictly procedural grounds and then require Respondent to file an answer. It does not appear that any additional factual matter would be pertinent to the claims before the Court or that the parties desire to bring any further facts before the Court. Respondent's position is essentially that on the basis of all the evidence in the record, Petitioner received all the process that was due; Petitioner's position is that on the basis of all the evidence in the record, Petitioner's right to due process was violated by an absence of evidence to support the disciplinary finding, and the hearing officer lacked the authority to determine the violation. It does not appear that Petitioner will suffer any prejudice if the Court proceeds to determine the merits of the petition. Petitioner had a full opportunity to support his contentions in the petition and to argue the legal points in his opposition to the motion to dismiss. There does not appear to be any material dispute as to the evidence that was presented and relied upon in the disciplinary proceedings; rather, the parties disagree on the legal significance of the evidence.

Historically, only two types of dispositions were available for habeas petitions: either summary dismissal, or a decision after a full hearing. Hillery v. Pulley, 533 F.Supp. 1189, 1196 (E.D.Cal. 1982). However, Habeas Rule 7 permits expansion of the record by the submitting additional materials relevant to the merits of the petition, including documentary exhibits and evidentiary documents such as sworn answers to interrogatories and affidavits. Habeas Rule 7(a), (b).*fn2 One purpose of expanding the record is to enable a judge to dispose of some habeas petitions that are not dismissed on the pleadings, and to do so without the time and expense required for an evidentiary hearing. Habeas Rule 7 Advisory Committee's Note.

In this case, the Court's order directing the filing of a response resulted in the expansion of the record which, in view of the absence of a material issue of fact concerning the authenticity or contents of that record, permits consideration of the merits of the petition without delay.

Accordingly, the Court DEEMS the motion to dismiss to be an answer that responds to the petition. The Court will consider Petitioner's ...


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