United States District Court, E.D. California
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
is a federal prisoner proceeding pro se with a petition for a
writ of habeas corpus under 28 U.S.C. § 2241. The matter
has been referred to the Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending
before the Court is the petition, which was filed on March
14, 2016. For the reasons set forth below, this court will
dismiss the petition and provide petitioner an opportunity to
amend the petition.
initiated this action in 2016 by filing a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No.
1.) Petitioner challenges his conditions of confinement,
alleging that correctional officers at FCI Herlong retaliated
against petitioner and unnecessarily harassed him by planting
narcotics in his shoe and issuing an incident report about
Rules Governing Section 2254 Cases in the United States
District Courts (Habeas Rules) are appropriately applied to
proceedings undertaken pursuant to 28 U.S.C. § 2241.
Habeas Rule 1(b). Habeas Rule 4 requires the Court to make a
preliminary review of each petition for writ of habeas
corpus. The Court must summarily dismiss a petition
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court[.]” Habeas Rule 4;
O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
1990); see also Hendricks v. Vasquez, 908 F.2d 490
(9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1)
specify all grounds of relief available to the Petitioner; 2)
state the facts supporting each ground; and 3) state the
relief requested. Notice pleading is not sufficient; the
petition must state facts that point to a real possibility of
constitutional error. Rule 4, Advisory Committee Notes, 1976
Adoption; O'Bremski, 915 F.2d at 420 (quoting
Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)).
Allegations in a petition that are vague, conclusory, or
palpably incredible are subject to summary dismissal.
Hendricks v. Vasquez, 908 F.2d at 491.
Court may dismiss a petition for writ of habeas corpus either
on its own motion under Habeas Rule 4, pursuant to the
respondent's motion to dismiss, or after an answer to the
petition has been filed. Advisory Committee Notes to Habeas
Rule 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d
1039, 1042-43 (9th Cir. 2001). A petition for habeas corpus
should not be dismissed without leave to amend unless it
appears that no tenable claim for relief can be pleaded were
such leave granted. Jarvis v. Nelson, 440 F.2d 13,
14 (9th Cir. 1971).
federal court may not entertain an action over which it has
no jurisdiction. Hernandez v. Campbell, 204 F.3d
861, 865 (9th Cir. 2000).
by way of a writ of habeas corpus 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 under 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.,
United States v. Giddings, 740 F.2d 770, 772 (9th
Cir. 1984); 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); United States v.
Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991) (asserting
petitioner should be housed at a community treatment center);
Barden v. Keohane, 921 F.2d 476, 479 (3d Cir. 1991)
(arguing Bureau of Prisons erred in determining whether
petitioner could receive credit for time spent in state
custody); Brown v. United States, 610 F.2d 672, 677
(9th Cir. 1990) (challenging content of inaccurate
pre-sentence report used to deny parole).
asserts that a correctional officer entered his empty cell
ahead of other correctional officers who were to conduct a
search. (ECF No. 1 at 7.) Petitioner alleges that the first
correctional officer planted drugs, which were found by the
officers searching the cell. (Id.) That evening,
petitioner alleges that he was given an Incident Report
documenting that narcotics were found in his cell.
(Id. at 7-8.) Petitioner labels this ground for
habeas relief as “unnecessary harassment and
retaliation.” (Id. at 3, 7.) He claims that he
“was set up” by a correctional officer who had
previously threatened him after earlier investigations by
this officer resulted in no violations. (Id. at 8.)
petitioner states that he was placed in the Special Housing
Unit (SHU) while the matter was investigated (asserting that
he received the Incident Report while he was in SHU), he does
not present any facts concerning the ultimate consequences
stemming from the incident. Specifically, petitioner does not
allege any facts concerning disciplinary proceedings or
punitive measures entered against him by prison authorities.
corpus jurisdiction is available for a prisoner's claims
that he has been subjected to greater restrictions of his
liberty, such as disciplinary segregation, without due
process of law. Bostic v. Carlson, 884 F.2d 1267,
1269 (9th Cir. 1989). Federal regulations create a liberty
interest in not being subjected to disciplinary segregation
without due process of law. Id.; seeHewitt v. Helms, 459 U.S. 460, 466-472 (1983)
(holding that a state statutory framework and the punitive
nature of segregation created a liberty interest);
Zimmerlee v. Keeney, 831 F.2d ...