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Peter John Triliegi v. H. A. Rios

May 3, 2013

PETER JOHN TRILIEGI,
PETITIONER,
v.
H. A. RIOS, WARDEN,
RESPONDENT.



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

ORDER DISMISSING PETITIONER'S MOTION FOR A DECISION AS MOOT ) (DOC. 19) ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT

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 to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on February 14, 2011, and on behalf of Respondent on December 19, 2011. Pending before the Court is the petition, which was filed on February 4, 2011, in which Petitioner seeks credit upon his federal sentence based on his claim that the Federal Bureau of Prisons (BOP) ignored a federal sentencing judge's intention to create a concurrent sentence for Petitioner's supervised release violation and new criminal conduct. On December 19, 2011, Respondent filed an answer to the petition, and Petitioner filed a traverse on January 5, 2012.

I. Jurisdiction

A claim challenging the manner, location, or conditions of a sentence's execution must be brought under § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). A challenge to the manner in which a sentence is executed must be brought in a habeas petition pursuant to 28 U.S.C. § 2241. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991) (concerning whether the parole commission had improperly failed to credit the prisoner's federal sentence with time served in state custody). Thus, this Court has jurisdiction over Petitioner's claim concerning the execution of his sentence.

A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). Petitioner has named as Respondent the warden of his institution of confinement, who is within this judicial district.

The Court concludes that it has subject matter jurisdiction over the petition as well as jurisdiction over the person of the Respondent.

Further, Respondent concedes that Petitioner has named a proper respondent, venue is proper in this district, and Petitioner has exhausted administrative remedies. (Ans., doc. 11, 2-3.)

II. Facts

The facts are derived from the declaration of J. Scott Farr, a management analyst for the Designation and Sentence Computation Center of the BOP, who reviewed and summarized Petitioner's records and attached pertinent portions of them to his declaration.

On September 24, 1997, in case number 97-CR-69 of the United States District Court for the Eastern District of Wisconsin, Petitioner was sentenced to two concurrent terms of thirty-three months each for possessing with intent to distribute and distributing a mixture containing cocaine (count 1) and manufacturing in excess of 100 marijuana plants (count 3), with five years of supervised release. Petitioner served his time in custody and was released on supervised release on June 25, 1999, with his supervision scheduled to terminate on June 24, 2004. (Decl. of J. Scott Farr, doc. 11-1, 2; doc. 11-2, 6.)

On June 15, 2004, a criminal complaint was filed in case number 04-CR-160 in the United States District Court for the Eastern District of Wisconsin charging Petitioner with manufacturing 100 or more marijuana plants. (Doc. 11-1, 2; doc. 11-2, 3-4.) Petitioner was arrested on the charges on the same date. (Doc. 11-1, 2; doc. 11-2, 6.)

On July 20, 2004, in a revocation hearing report, a probation officer reported the issuance of a warrant to address Petitioner's violations of supervised release, including false reports of living alone despite maintaining a residence with his co-defendant, illegally possessing a controlled substance, and using a telephone to continue growing with his co-defendant 100 or more marijuana plants. (Doc. 11-2, 7-9.)

On August 10, 2004, Petitioner was sentenced to three years in prison, with no supervised release to follow, on his violations of the conditions of supervised release ...


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