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Rowe v. Copenhaver

United States District Court, Ninth Circuit

October 24, 2013

OMAR ROWE, Petitioner,
v.
PAUL COPENHAVER, Respondent.

ORDER DENYING RESPONDENT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST [ECF NO. 19] ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE

GARY S. AUSTIN, Magistrate Judge.

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The parties have voluntarily consented to the exercise of Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1) for all purposes, including entry of final judgment.

Petitioner is currently in the custody of the Bureau of Prisons ("BOP") pursuant to a judgment of the United States District Court for the Eastern District of Pennsylvania entered on July 12, 2007, following his convictions for conspiracy to interfere with interstate commerce by threat or violence, interference with interstate commerce by threat or violence and aiding and abetting, and using a firearm during a crime of violence and aiding and abetting. (Resp't's Mot. to Dismiss, Ex. 1, Kelly Decl., at ¶ 3.) Petitioner was sentenced to serve a term of 135 months in federal prison. (Id.)

On February 5, 2013, Petitioner filed the instant federal petition for writ of habeas corpus in this Court. The petition challenges the method in which the BOP has calculated Petitioner's federal sentence. Specifically, Petitioner claims that the BOP has unlawfully denied him credit against his sentence for time spent in custody during pre-trial and post-sentence. Petitioner complains that the BOP failed to credit his federal sentence with time that wasn't credited toward his state sentence. He claims he should be granted credit from April 16, 2006, to July 12, 2007, and from August 21, 2009 to October 15, 2009.

On August 12, 2013, Respondent filed a motion to dismiss the petition.
On September 16, 2013, Petitioner filed an opposition to Respondent's motion.

DISCUSSION

I. Jurisdiction

Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity or constitutionality of his conviction must bring a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See, e.g., Brown v. United States , 610 F.2d 672, 677 (9th Cir. 1990); Capaldi v. Pontesso , 135 F.3d 1122, 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons , 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili , 925 F.2d 889, 893-94 (6th Cir. 1991). To receive relief under 28 U.S.C. § 2241, a petitioner in federal custody must show that his sentence is being executed in an illegal, but not necessarily unconstitutional, manner. See, e.g., Clark v. Floyd , 80 F.3d 371, 372, 374 (9th Cir. 1995) (contending time spent in state custody should be credited toward federal custody); Jalili , 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); Barden, 921 F.2d at 479 (arguing Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in state custody); Brown , 610 F.2d at 677 (challenging content of inaccurate pre-sentence report used to deny parole).

In this case, Petitioner challenges the execution of his sentence. Therefore, the Court has jurisdiction to consider the petition pursuant to 28 U.S.C. § 2241.

II. Venue

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 , 610 F.2d at 677. Petitioner is in the custody of the Bureau of Prisons at the United States Penitentiary in Atwater, California, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a); 2241(d). Therefore, venue is proper in this Court.

III. Exhaustion

A petitioner who is in federal custody and wishes to seek habeas relief pursuant to 28 U.S.C. § 2241 must first exhaust available administrative and judicial remedies. Brown v. Rison , 895 F.2d 533, 535 (9th Cir.1990); Chua Han Mow v. United States , 730 F.2d 1308, 1313 (9th Cir.1984). It is only after a petitioner has fully exhausted his administrative remedies that he becomes entitled to present his claims to the federal court. See United States v. Mathis , 689 F.2d 1364, 1365 (11th Cir.1982). However, the exhaustion requirement was judicially created; it is not a statutory requirement. Chua Han Mow , 730 F.2d at 1313; Montgomery v. Rumsfeld , 572 F.2d 250, 252 (9th Cir.1978). Because exhaustion is not required by statute, it is not jurisdictional. Morrison-Knudsen Co., Inc. v. CHG Int'l, Inc. , 811 F.2d 1209, 1223 (9th Cir.1987); Montgomery , 572 F.2d at 252. "Where exhaustion of administrative remedies is ...


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