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Cruz v. Fox

United States District Court, C.D. California

January 26, 2015

ALBERTO CRUZ, Petitioner,
JACK FOX, Warden, Respondent

Alberto Cruz, Petitioner, Pro se, Lompoc, CA.

For Jack Fox, Respondent: Chung Hae Han, LEAD ATTORNEY, Office of U S Attorney, Los Angeles, CA; Assistant U.S. Attorney LA-CV, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Diana L Pauli, Office of U.S. Attorney, Criminal Division - U.S. Courthouse, Los Angeles, CA.



This Report and Recommendation is submitted to the Honorable Manuel L. Real, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.


Petitioner is a federal prisoner currently incarcerated at the United States Penitentiary in Lompoc, California (" USP-Lompoc"). On July 1, 2014, petitioner filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody (" Pet.") pursuant to 28 U.S.C. § 2241 herein. In response to the Court's Order Requiring Response to Petition, on August 5, 2014, respondent filed a Motion to Dismiss Petition for Writ of Habeas Corpus (" Motion") on the ground that petitioner failed to exhaust his available administrative remedies. On October 20, 2014, petitioner filed a " Reply to Respondent's Motion to Dismiss Petition, " which the Court construes as petitioner's Opposition (" Opp.") thereto.

Thus, this matter is now ready for decision. For the reasons discussed herein, the Court recommends that the Motion be granted and that the Petition be dismissed without prejudice for failure to exhaust administrative remedies.


Petitioner is currently serving a 120-month term of imprisonment for conspiracy to possess with intent to distribute, and to distribute 500 grams or more of cocaine. (Declaration of Werner Guth (" Guth Decl.") in support of Motion, Exhibit [" Exh." ] A.) Petitioner's projected release date is July 1, 2020, with good conduct time. (Id.) Petitioner was incarcerated at the Federal Correctional Institution in Ray Brook, New York (" FCI-Ray Brook") from May 24, 2012 through March 15, 2013. (Guth Decl., Exh. B.) On April 3, 2013, petitioner was transferred to USP-Lompoc. (Id.)


Petitioner contends that his due process rights were violated on December 13, 2012 when he was found guilty of committing Prohibited Act 199, for conduct which disrupts or interferes with the security or orderly running of the institution, most like Prohibited Act 108, possession, manufacture, or introduction of a hazardous tool, including portable telephones. (Pet. at 3; Motion at 1; Guth Decl., Exh. C.)


It is well settled that federal prisoners must generally exhaust their federal administrative remedies prior to filing a habeas corpus petition pursuant to 28 U.S.C. § 2241. See Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (per curiam) (" Federal prisoners are required to exhaust their federal administrative remedies prior to bringing a petition for a writ of habeas corpus in federal court."); see also Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2005) (as amended); Fendler v. U.S. Parole Comm'n, 774 F.2d 975, 979 (9th Cir. 1985). While the exhaustion requirement is not jurisdictional, its importance is well established. See Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds, Reno v. Koray, 515 U.S. 50, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995); see also Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012); Singh v. Napolitano, 649 F.3d 899, 900 (9th Cir. 2011) (per curiam) (as amended) (" In order to seek habeas relief under section 2241 . . . a petitioner must first, 'as a prudential matter, ' exhaust his or her available administrative remedies." (citation omitted)); Castro-Cortez v. Immigration & Naturalization Serv., 239 F.3d 1037, 1047 (9th Cir. 2001) (" [S]ection [2241] does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus. However, we require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241." (footnote omitted)), abrogated on other grounds, Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). Requiring a petitioner to exhaust his administrative remedies aids " judicial review by allowing the appropriate development of a factual record in an expert forum." See Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983) (per curiam). Use of available administrative remedies conserves " the court's time because of the possibility that the relief applied for may be granted at the administrative level." Id. Moreover, it allows " the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings." Id.

Courts have discretion to waive the exhaustion requirement where " administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void." Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (citation omitted); see also Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 542 n.3 (9th Cir. 2004). A " key consideration" in exercising such discretion is whether " relaxation of the requirement would encourage the deliberate bypass of the ...

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