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Andrews v. Adler

September 22, 2010

DAMIEN ANTHONY ANDREWS, PETITIONER,
v.
NEIL H. ADLER, ET.AL., RESPONDENTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

[Doc. 1]

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 August 3, 2007, Petitioner was sentenced in the United States District Court for the Southern District of California to sixty months imprisonment for violating 21 U.S.C. § 846, 841(A)(1), conspiracy to manufacture marijuana plants, and two counts of violating 18 U.S.C. § 1957, laundering money. Ex. 1, Declaration of Jennifer Vickers.

Petitioner is currently serving his federal sentence at the Taft Correctional Institution in Taft, California (TCI), and his projected release date is August 5, 2011 via good conduct time release. Id.

On September 26, 2007, Petitioner entered the Lift Quest (also called Life Line by Petitioner) drug program at California City Correctional Center (CCCC). He completed this program on March 24, 2008. Ex. 2, Declaration of Angela Person-Sibley.

On February 10, 2009, the Immigration and Naturalization Service (now known as the Immigration and Customs Enforcement Agency) lodged a detainer against Petitioner for possible deportation. Ex. 3, Immigration Detainer, Notice of Action.

Petitioner filed the instant federal petition for writ of habeas corpus on May 18, 2010, claiming he is entitled to RDAP credit for the drug program he completed at CCCC. He also challenges his exclusion from early release consideration because of his immigration detainer.

DISCUSSION

I. Subject Matter Jurisdiction and Venue

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). To the extent Petitioner seeks to challenge the "fact or duration of confinement," this Court has jurisdiction under 28 U.S.C. § 2241. In addition, pursuant to § 2241, venue is proper in this case because Petitioner was confined at TCI in Taft, California, at the time he filed the instant petition. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.2000).

II. Exhaustion of Administrative Remedies

Before filing a petition for writ of habeas corpus, a federal prisoner challenging any circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). Thus, "because exhaustion is not required by statute, it is not jurisdictional." Id. If Petitioner has not properly exhausted his claims, the district ...


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