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Lopez v. Benov

United States District Court, E.D. California

January 13, 2015

CECILIO CORTEZ LOPEZ, Petitioner,
v.
MICHAEL L. BENOV, Respondent.

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

MICHAEL J. SENG, Magistrate Judge.

I. INTRODUCTION

Petitioner is a federal prisoner proceeding pro se with a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. Petitioner is confined at Taft Correctional Institution ("TCI") in Taft, California.

The instant petition was filed on August 2, 2013. (Pet., ECF No. 1.) Petitioner alleges he was denied forty eight (48) days of good conduct time he earned by participating in educational programming between April 28, 2007 and April 27, 2011. (Id. at 3, 8.) Petitioner presents two arguments: (1) that as a sentenced deportable alien, he was not required to meet the education requirement to be eligible for additional good conduct time; and (2) that the employees of TCI are not authorized to reduce Petitioner's good conduct time because they are not Bureau of Prisons employees. (Id. at 4-6.) Respondent filed an answer to the petition on November 1, 2013. (Answer, ECF No. 12.) Petitioner filed no traverse. This matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. It stands ready for adjudication.

II. JURISDICTION

A. Subject Matter Jurisdiction

Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Although a federal prisoner who challenges the validity or constitutionality of his conviction must file a petition for writ of habeas corpus under 28 U.S.C. § 2255, a federal prisoner challenging the manner, location, or conditions of the execution of a sentence must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000).

Petitioner alleges that his good conduct time has been improperly calculated. (Pet. at 3.) If a constitutional violation has resulted in losing time credits, it affects the duration of a sentence, and the violation may be remedied by way of a petition for writ of habeas corpus. Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990). The Court has subject matter jurisdiction over the petition.

B. Jurisdiction over the Person

28 U.S.C. § 2241(a) provides that writs of habeas corpus may be granted by the district courts "within their respective jurisdictions." A writ of habeas corpus operates not upon the prisoner, but upon the prisoner's custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). A petitioner filing a petition for writ of habeas corpus under § 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). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Id .; Rumsfeld v. Padilla, 542 U.S. 426, 446-47, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). It is sufficient if the custodian is in the territorial jurisdiction of the court when the petition is filed; transfer of the petitioner thereafter does not defeat personal jurisdiction that has once been properly established. Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990).

At all pertinent times Petitioner was incarcerated at TCI. TCI is within the Eastern District of California. Petitioner named Michael L. Benov, the Warden of TCI, as Respondent. The Court has personal jurisdiction over the custodian.

III. ANALYSIS OF CLAIM

A. Factual Background

While incarcerated, Petitioner participated in a literacy program to help him progress towards obtaining a General Educational Development ("GED") certificate. Petitioner first enrolled in the literacy program on March 5, 2007. (Decl. of Dale Patrick, Ex. D, ECF No. 12-2.) On November 27, 2007, his GED status was changed to unsatisfactory due to poor progress. ( Id., Exs. D, G.) ...


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