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Carlos Charles Powell v. U.S. Board of Prisons

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


December 15, 2010

CARLOS CHARLES POWELL,
PETITIONER,
v.
U.S. BOARD OF PRISONS, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE AND WITH LEAVE TO AMEND

This petition for a writ of habeas corpus was filed on February 6, 2009 in the United States District Court for the Eastern District of California. It was transferred to this Court on September 22, 2010. For the following reasons, the petition is dismissed without prejudice and with leave to amend.

To begin with, the Court cannot discern the legal or factual basis for petitioner's claims. It is not clear what the cause of petitioner's federal detention is, or was, nor is it clear why petitioner believes that detention violates federal law. Petitioner has failed to allege any federally cognizable claim. Moreover, even if petitioner could amend his petition to raise a federal question, it is not clear that any such federal claim has been exhausted. Federal prisoners generally must exhaust administrative remedies prior to filing a habeas petition pursuant to 28 U.S.C. § 2241. See Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Fendler v. United States Parole Comm'n, 774 F.2d 975, 979 (9th Cir. 1985).

Based upon the foregoing deficiency, the petition is dismissed without prejudice and with leave to amend. Petitioner shall, within twenty-eight (28) days of the date of this order, file and serve an amended petition curing the deficiencies noted above. The amended petition shall be filed on the forms provided by the Clerk and shall bear the case number CV 10-7119-GW(AJW). The amended petition also shall include information regarding the custody petitioner intends to challenge, the specific legal and factual basis for his claims for relief, and any attempts to exhaust administrative remedies. Petitioner is cautioned that failure to file an amended petition within the time provided may result in dismissal of the petition with prejudice.

In light of this order, respondent's motion to dismiss the original petition is denied without prejudice as moot. Further, because it is unclear whether the United States Attorney's Office in this district should be notified of the pendency of this action, counsel for respondent is directed to consider that issue and notify the local United States Attorney's Office if appropriate.

IT IS SO ORDERED.

20101215

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