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Gorbatenko v. Swain

United States District Court, E.D. California

May 22, 2017

ALEKSANDER GORBATENKO, Petitioner,
v.
SWAIN, et al., Respondents.

          ORDER

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         BACKGROUND

         Petitioner 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 the find.

         SCREENING

         I. Legal Standards

         The 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.

         The 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).

         II. Discussion

         A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000).

         Relief 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).

         Petitioner 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.)

         While 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.

         Habeas 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 ...


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