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Ayon v. Benov

United States District Court, Ninth Circuit

November 19, 2013

JOSE AYON, Petitioner,
v.
MICHAEL L. BENOV, Respondent.

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

STANLEY A. BOONE, District Judge.

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

I.

BACKGROUND

Petitioner is in the custody of the Bureau of Prisons at the Taft Correctional Institution located in Taft, California, pursuant to a judgment of the United States District Court, Southern District of California, following his conviction for importation of cocaine in violation of 21 U.S.C. §§ 952, 960. (Resp't's Answer, Ex. 1, Vickers Decl. at ¶ 2.) Petitioner was sentenced to serve a determinate prison term of 33 months in federal prison, and he currently has a projected release date of November 10, 2013, via good conduct time. ( Id., at ¶ 2.)

On July 19, 2013, Petitioner filed the instant petition for writ of habeas corpus in this Court. Petitioner does not challenge his conviction. Rather, he challenges a disciplinary proceeding held on September 27, 2012, in which Petitioner was found guilty of possessing a sharpened instrument on August 4, 2012, and on August 10, 2012. ( Id., at ¶ 4-5.) As a result of the August 4, 2012 incident, Petitioner was sanctioned with a loss of 41 days of good conduct credits, 3 months in disciplinary segregation, and 6 months of commissary privileges. ( Id., at ¶ 4.) For the August 10, 2012 incident, Petitioner was sanctioned with a loss of 41 days of good conduct credits, 28 days forfeiture of non-vested good conduct time, and 3 months in disciplinary segregation. ( Id., at ¶ 5.) Petitioner claims his due process rights were violated because the disciplinary hearing officer who conducted the hearing was not a staff member of the Bureau of Prisons and therefore lacked the authority to render a decision. On October 1, 2013, Respondent filed an answer to the petition. Petitioner did not file a traverse.

II.

DISCUSSION

A. 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., 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); Brown v. United States , 610 F.2d 672, 677 (9th Cir. 1990). 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.

B. 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. At the time of filing, Petitioner was in the custody of the Bureau of Prisons at the Taft Correctional Institution in Taft, California, which is located within the ...


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