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MIGUEL GARCIA HERNANDEZ v. HARLEY G. LAPPIN

November 29, 2010

MIGUEL GARCIA HERNANDEZ,
PETITIONER,
v.
HARLEY G. LAPPIN,
RESPONDENT.



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

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF DENYING MOTION FOR DISCOVERY, RESPONDENT

[Docs. 1, 21]

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).

BACKGROUND

Petitioner is a federal inmate serving a 72 month sentence. On July 23, 2007, in the United States District Court of the Western District of Washington, Petitioner was sentenced to a 72 months term of imprisonment for violating 21 U.S.C. § 841, 18 U.S.C. § 2 and 18 U.S.C. § 1956, Distribution of Methamphetamine, Aiding and Abetting and Conspiracy to Engage in Money Laundering. See Exhibit 2, Public Information Inmate Data. At the time the challenged incident report was issued, Petitioner was housed at the California City Correctional Institution (CCCI) in California City, California. See Exhibit 1, Admission Release History. Petitioner filed the petition for writ of habeas corpus challenging sanctions he received for a violation of prison rules in incident report 1923770, including the loss of good-time custody credits.

Respondent filed an answer to the petition on October 7, 2010, and Petitioner filed a traverse on November 8, 2010, along with a motion for Respondent to disclose all videos and pictures in relation to his violation.

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). At the time the instant petition, Petitioner was housed at CCCI but is now house at the Federal Correctional Institution in McKean, Pennsylvania (FCI McKean). "'[J]urisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petition and the accompanying custodial change.'" Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990), quoting Santillanes v. United States Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985); accord Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971).

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 court, in its discretion, may either "excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his administrative remedies before proceeding in court."

If the petitioner did not properly exhaust his administrative remedies, and such remedies are no longer available, he may have procedurally defaulted on his claims. See Francis v. Rison, 894 F.2d 353, 354-55 (9th Cir.1990) (applying procedural default rules to administrative appeals); see generally Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977); Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir.1988). If a claim is procedurally defaulted, the court may require the petitioner to demonstrate cause for the procedural default and actual prejudice from the alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause and prejudice test is the appropriate test); Murray, 477 U.S. at 492 ...


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