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Sito Nalwood v. United States of America

April 25, 2013

SITO NALWOOD,
PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

FINDINGS AND RECOMMENDATIONS DENYING THE PETITION FOR WRIT OF HABEAS CORPUS

Sito Nalwood ("Petitioner") is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Respondent filed an answer to the petition on April 18, 2011. (Doc. 13). For the following reasons, the Court recommends the petition for a writ of habeas corpus be DENIED.

FACTUAL AND PROCEDURAL HISTORY

Petitioner is currently in the custody of the Bureau of Prisons, serving a sentence of 105 months for brandishing a firearm in commission of a violent crime and assault resulting in serious bodily injury (18 U.S.C. §§ 113a(6) and 1153).

On October 1, 2006, Petitioner was arrested and taken into custody. (Doc. 11 at 23). On November 3, 2006, the United States District Court, District of Arizona, issued an "Order Setting Conditions of Release." (Doc. 13-1, Exh. 2). Petitioner was released on his own recognizance, and ordered to reside at Recovery Homes, Inc. as an additional condition of release. (Doc. 13-1 at 10, 12).

Petitioner entered a guilty plea, and on January 31, 2008, was "committed to the custody of the Bureau of Prisons for a term of ONE HUNDRED FIVE (105) MONTHS, with credit for time served." 3

(Doc. 13-1 at 14, 17) (emphasis omitted). Pursuant to this order, Petitioner received credit for his time 4 in prison from October 1 to November 3, 2006: a total of 34 days. (Doc. 13-1 at 21). 5

Petitioner filed a Petition for Writ of Habeas Corpus in the United States District Court, District of Arizona, which was dismissed on July 30, 2008. (Doc. 2-1 at 1). He filed a Notice of Appeal with the Ninth Circuit Court of Appeals on August 25, 2008. Id. The Ninth Circuit remanded 8 the action "for the purpose of redetermining whether [Petitioner's] claim is properly raised in a 28 9 U.S.C. § 2241 petition and to consider whether the petition should be transferred to the judicial district where [Petitioner] is confined." Id. Accordingly, the court reviewed the petition and determined Petitioner's claims "can be raised in a § 2241 Petition." Id. at 2. Because Petitioner is confined in Atwater, California, the matter was transferred from the District of Arizona to the Eastern District of California on January 4, 2011.*fn1 Id. Accordingly, the action commenced before this Court on January 11, 2011. (Doc. 1).

JURISDICTION

Relief under a petition for writ of habeas corpus extends to a person in custody under the authority of the United States. 28 U.S.C. § 2241(c)(3). A federal prisoner may "challenge the manner in which a sentence is executed" by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998). Accordingly, habeas "petitions that challenge the manner, location or conditions of a sentence's execution must be brought pursuant to § 2241." Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000); see also Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991) (a § 2241 petition is the proper method for a prisoner challenging the duration of his confinement); Kinsley v. Bureau of Prisons 937 F.2d 26, 30 n. 5 (2nd Cir. 1991) ("challenges to the length, appropriateness or conditions of confinement are properly brought under 28 U.S.C. § 2241").

To be entitled to habeas relief under 28 U.S.C. § 2241, a petitioner must show his sentence is 2 being executed in an illegal manner. See, e.g., Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) 3 ("[h]abeas corpus jurisdiction is available under 28 U.S.C. section 2241 for a prisoner's claims that he 4 has been denied good time credits without due process of law"); Clark v. Floyd, 80 F.3d 371, 372, 374 5 (9th Cir. 1995) (reviewing the petitioner's contention that time spent in state custody should be 6 credited toward federal custody under § 2241). Here, Petitioner asserts the calculation of his sentence 7 was improper, because his time served while in a recovery house should be credited toward his 8 sentence. (Doc. 1 at 3). Accordingly, Petitioner's claims are raised properly under 28 U.S.C. § 2241.9

DISCUSSION AND ANALYSIS

Petitioner asserts he is "entitled to 483 days of Awaiting Jail Credits pursuant to Title 18 U.S.C. § 3585(b)." (Doc. 1 at 3). Under 18 U.S.C. § 3585 ("Section 3835"), a defendant "shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences . . ." 18 U.S.C. § 3585(b). Petitioner argues his time at Recovery Homes, Inc., falls within the meaning of confinement. (Doc. 1 at 7). On the other hand, Respondent asserts the petition should be ...


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