United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS THIRTY (30) DAY OBJECTION DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
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.
reasons stated below, the undersigned recommends that the
petition be denied.
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.)
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.
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.)
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.
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.)
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.
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.
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
Jurisdiction and Venue
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