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Lee v. Zuniga

United States District Court, E.D. California

June 19, 2017

TIMOTHY WAYNE LEE, Petitioner,
v.
RAFAEL ZUNIGA, Warden, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS THIRTY (30) DAY OBJECTION DEADLINE

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Rafael Zuniga, Warden of Federal Correctional Institution, Mendota, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Benjamin B. Wagner and Patrick R. Delahunty, Assistant United States Attorneys.

         For the reasons stated below, the undersigned recommends that the petition be denied.

         I. Procedural History

         Petitioner is currently in federal custody at the Federal Correctional Institution (“FCI”), Mendota, pursuant to the December 2, 2011 judgment of the United States District Court for the District of Colorado, convicting Petitioner of aiding and abetting in the sex trafficking of children. (Exhibit to Response to Petition, ECF No. 15-1 at 8-9.) He is serving a 180-month sentence. (Id.)

         On September 24, 2013, Petitioner submitted an Inmate Request to Staff, seeking early release pursuant to 18 U.S.C. § 3582(c)(1)(A). (See id. at 22.) The request was based on the incapacitation of Petitioner's 73-year-old mother, who had been diagnosed with cancer and who was the sole caretaker of Petitioner's 8-year-old son. (See id. at 22, 34.) The request was denied on the ground that Petitioner did not submit “sufficient proof that your mother is the only family member capable of caring for your child. Additionally, your release plan does not demonstrate you have documentation that you have the financial means to care for the child immediately upon release.” (Id. at 22.) Petitioner was advised of his right to appeal the decision through the Administrative Remedy Program.

         Petitioner submitted his administrative appeal on October 20, 2013. (Id. at 21.) It was received by the Administrative Remedy Coordinator on November 7, 2013, and rejected the same day on procedural grounds. (Id. at 20.)

         It appears that Petitioner resubmitted his appeal on November 13, 2013. It was received by the Warden on November 18, 2013. On November 22, 2013, the Warden provided Petitioner with a response for “informational purposes only, ” given that Petitioner's appeal did not make any “specific request for relief.” (Id. at 24.) Petitioner was advised of his right to appeal to the Western Regional Office within twenty days.

         Petitioner's appeal was received by the Bureau of Prisons (“BOP”) Central Office on December 16, 2013. On December 30, 2013, the appeal was rejected because it was submitted to the wrong level. Petitioner was advised to continue his appeal to the Western Regional Office. (Id. at 28.)

         It appears that Petitioner submitted his appeal to the Western Regional Office on January 21, 2014. (Id. at 51.) Petitioner's appeal was received by the Western Regional Office on January 24, 2014. (Id. at 17.) It was denied on February 18, 2014, on the ground that Petitioner had not provided sufficient proof to support his request.

         On April 1, 2014, the BOP Central Office received Petitioner's appeal of the Western Regional Office's decision. (Id. at 17, 62.) The appeal was initially accepted for investigation, but was rejected on April 28, 2014, because Petitioner had not included a copy of his Institution Administrative Remedy Request or the response from the Warden, and also because part of the form was not completed. (Id. at 18, 62.) Petitioner was instructed to resubmit his appeal within fifteen days. As discussed below, the parties dispute whether and when Petitioner resubmitted his appeal.

         On February 25, 2015, Petitioner filed the instant petition for writ of habeas corpus. (ECF No. 1.) On June 1, 2015, Respondent filed an answer. (ECF No. 15.) On July 20, 2015, Petitioner filed a traverse. (ECF No. 18.) On July 30, 2015, Respondent filed a reply. (ECF No. 19.) On August 14, 2015, Petitioner filed a sur-reply. (ECF No. 20.) The matter is deemed submitted.

         II. Jurisdiction and Venue

         Writ of habeas corpus relief extends to a person in federal custody who can show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Here, Petitioner's claims are proper, if at all, under 28 U.S.C. § 2241 and not 28 U.S.C. § 2255 because they concern the manner, location, or conditions of the execution of Petitioner's sentence and not the fact of Petitioner's conviction or sentence. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1990) (stating that a challenge to the execution of a sentence is ...


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