The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING THE FIRST AMENDED PETITION (DOC. 20) ) WITHOUT LEAVE TO AMEND FOR
FAILURE TO STATE FACTS WARRANTING HABEAS CORPUS RELIEF
ORDER DISMISSING ALL PENDING
MOTIONS AS MOOT (DOCS. 6, 7, 9, 10, 11, 13, 16, 18, 26)
ORDER DIRECTING THE CLERK TO TERMINATE THE ACTION
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), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on October 24, 2011 (doc. 5). Pending before the Court is Petitioner's first amended petition (FAP), which was filed in this Court on January 9, 2012. *fn1
I. Screening the Petition
The Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules), Rule 1(b). Habeas Rule 4 requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus
either on its own motion under Habeas Rule 4, pursuant to
the respondent's motion to dismiss, or after an answer to the petition
has been filed. Advisory Committee Notes to Habeas Rule 8, 1976
Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Here, Petitioner alleges that at the time the petition was filed, he was an inmate of the United States Penitentiary at Atwater, California (USPA), and he is serving a sentence of 300 months imposed in 1999 by the United States District Court of the Southern District of Indiana. Petitioner alleges that in addition to his term of imprisonment, he was sentenced to a fine of $4,000,000.00 to be treated as a tax lien. (Pet. 1-2.) Petitioner seeks a stay of execution of what he characterizes as a judgment lien (id. at 3) and more broadly a stay of execution of his sentence as well as a suspension of his sentence. Petitioner contends that he has the right to satisfy his obligation with personal property other than money. The allegations are uncertain to what personal property Petitioner refers, although the Court infers that he is arguing that his conviction and imprisonment sufficed. He alleges that satisfaction of the judgment or a release of the lien as a matter of record results, as a matter of law, in a stay of the execution of the sentence and a suspension of the sentence. Petitioner alleges that he has a statutory right to satisfy the judgment with his personal property as well as rights based on the Equal Protection Clause and the protection against the impairment of contractual obligations of Art. I, § 10. (Id. at 3-8.) Petitioner submitted an offer of judgment captioned in this action (id. at 9-12) as well as a promissory note for $8,000,000.00 that is captioned for the underlying criminal case, case number 1:98-CR-00121-003 in the United States District Court for the Southern District of Indiana, and prepared for the approval of the Clerk of that court (id. at 13-16).
Jurisdiction pursuant to § 2241 Title 28 U.S.C. § 2241 provides that writs of habeas corpus may be granted by a district court within its jurisdiction only to a prisoner whose custody is within enumerated categories, including but not limited to custody under the authority of the United States or custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(a), (c)(1), (3).
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 or sentence 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 his 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). The scope of habeas review under § 2241 extends to both constitutional and statutory questions as well as to claims brought under the doctrine of equitable estoppel. Barapind v. Reno, 225 F.3d 1100, 1110 (9th Cir. 2000).
Here, Petitioner asks for a stay of execution of the sentence or a stay of the judgment pursuant to which he is now in custody. It appears that Petitioner is challenging not how his sentence is being executed, but rather the fact that it is being executed at all. Arguably, Petitioner is seeking relief that can only be dispensed by the trial court and is not available within the Bureau of Prisons.
The Court takes judicial notice of the docket of United States of America v. Christopher L. Harris, case number 1:98-cr-00121-SEB-KPF-3, in the United States District Court for the Southern District of Indiana (Indianapolis), the criminal case in which Petitioner was sentenced to the term of 300 months which he is now serving. *fn2 The Court notes that Petitioner has filed motions in that action seeking from the sentencing court in Indiana essentially the same relief that he seeks herein from this Court. (Docs. 12, 12, 31.) It appears from the docket that those motions remain pending. Further indication of the true nature of Petitioner's claims is the absence of any allegation in the petition that Petitioner has exhausted or even attempted to exhaust any administrative remedies within the Bureau of Prisons with respect to a stay of enforcement of his sentence.
To the extent that Petitioner's claims challenge the legality of the sentence that he is serving, as distinct from the manner in which his sentence is being executed, Petitioner must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. 28 U.S.C. § 2255; Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). In such cases, the motion must be filed in the district where the defendant was sentenced because only the sentencing court has jurisdiction. Hernandez v. Campbell, 204 F.3d at 864; Tripati, 843 F.2d at 1163. Generally, a prisoner may not collaterally attack a ...