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Angel De Leon v. Paul Copenhauer

November 26, 2012

ANGEL DE LEON, PETITIONER,
v.
PAUL COPENHAUER,
RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT [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. 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).

Petitioner filed the instant petition for writ of habeas corpus on June 18, 2012, in which he seeks credit of approximately seven months against his federal sentence for time he spend in federal custody from August 2, 2010 through August 10, 2010, and in state custody from March 10, 2010, through February 18, 2011.

Respondent filed an answer to the petition on October 11, 2012, and Petitioner filed a traverse on November 19, 2012.

DISCUSSION

I. Standard of Review

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). Petitioner's claims are proper under 28 U.S.C. § 2241 and not 28 U.S.C. § 2255 because they concern the manner, location, or conditions of the execution of petitioner's sentence and not the fact of petitioner's conviction or sentence. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir.1990) (stating that a challenge to the execution of a sentence is "maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241"); Montano-Figueroa v. Crabtree, 162 F.3d 548, 549 (9th Cir.1998) (per curiam) (allowing a federal prisoner to use § 2241 to challenge the BOP's restitution policies).

Further, Petitioner is challenging the execution of his sentence at the United States Penitentiary in Atwater, California, which is within the Fresno Division of the Eastern District of California; therefore, the Court has jurisdiction over this petition. See Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).

III. Review of Petition

A. 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).

Respondent concedes that Petitioner has exhausted the available administrative remedies. (Resp's Ans., Ex. 2, Copy of Administrative Remedy and Agency's Answers.)

B. Sentence Computation

Petitioner is currently serving a 27-month term of imprisonment for Illegal Re-entry by a Previously Deported Alien after a Felony Conviction, in violation of 8 U.S.C. ยงยง 1326(a), ...


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