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Gutierrez v. United States

August 31, 2010

VERONICA LIVIER GUTIERREZ, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. SUMMARY OF PROCEEDINGS

Petitioner was sentenced to 41 months in federal custody on March 2, 2007, for importation of cocaine and aiding and abetting (21 U.S.C. §§ 952, 960; 18 U.S.C. § 2), as well as bulk cash smuggling and aiding and abetting (31 U.S.C. § 5332(a); 18 U.S.C. § 2). (See Petition at 3; Judgment in Case No. CR 06-2151-JAH-01, United States District Court for the Southern District of California, entered March 2, 2007). Her Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (the "Petition") was filed on June 9, 2008, in which she challenges the calculation of her release date as set by the Federal Bureau of Prisons ("BOP").

On July 1, 2008, the parties waived their right to proceed before a United States District Judge, and consented to have the undersigned Magistrate Judge conduct all further proceedings in this matter.

Respondent filed a Motion to Dismiss the Petition on July 10, 2008. On September 25, 2008, petitioner filed a Reply. This matter has been taken under submission, and is now ready for decision.

II. STATEMENT OF FACTS

On March 2, 2007, petitioner received a sentence of 41 months in prison. (Petition at 3). The BOP calculated petitioner's projected release date, presuming she earned all available "good conduct time," as August 26, 2009. (Motion to Dismiss at 1; Declaration of Jeff Vize, attached to Motion to Dismiss ("Vize Decl."), at ¶ 4).

III. PETITIONER'S CONTENTION

The BOP has incorrectly calculated petitioner's "good conduct time" ("GCT") credits and release date in violation of 18 U.S.C. § 3624(b). (Petition at 4; Reply at 2-6).

IV. DISCUSSION

In order to obtain habeas relief, petitioner must show that her custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Because petitioner challenges the legality of her custody based on a dispute over the calculation of her release date by the BOP (rather than challenging her sentence as imposed by the court), her claim is properly brought in a petition under 28 U.S.C. § 2241 in the district of confinement. See Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991) (application of an incarceration credit to shorten a federal sentence pertains to the manner in which a sentence is executed, "an action maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241").

A. EXHAUSTION OF ADMINISTRATIVE REMEDIES

The Ninth Circuit "'require[s], as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241.'" Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004) (quoting Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)); see also Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (per curiam) (prisoners in federal custody are generally required to exhaust administrative remedies before filing a habeas petition). The exhaustion requirement "aid[s] judicial review by allowing the appropriate development of a factual record in an expert forum." See Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). Use of available administrative remedies also "conserve[s] the court's time because of the possibility that the relief applied for may be granted at the administrative level," and "allow[s] the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings." Id. Exhaustion, however, is not jurisdictional (Tucker, 925 F.2d at 332), and may be waived if pursuit of the administrative remedy at issue would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (per curiam).

The BOP has established administrative procedures for inmates to follow when challenging aspects of their imprisonment. See 28 C.F.R. §§ 542.10-542.19; see also Nigro v. Sullivan, 40 F.3d 990, 992 (9th Cir. 1994) (explaining BOP's administrative procedures). In order to exhaust available ...


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