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Barbour v. Matevousian

United States District Court, E.D. California

February 27, 2018

SCOTT BARBOUR, Petitioner,
v.
ANDRE MATEVOUSIAN, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         At the commencement of this case, Petitioner was in the custody of the Bureau of Prisons (“BOP”) at the United States Penitentiary at Atwater, California (“USP Atwater”). He is now incarcerated at Federal Correctional Institution in Berlin, New Hampshire (“FCI Berlin”). He filed a petition for writ of habeas corpus challenging a disciplinary action taken against him for violating BOP prohibited codes 111A (introduction of narcotics or drugs not prescribed by medical staff); 196 (use of mail to further criminal activity); and 297 (use of telephone for abuses other than criminal activity). See Declaration of Christopher Liwag (“Liwag Decl.”) ¶ 22. For his violation of code 111A, Petitioner was sanctioned with 41 days loss of Good Conduct Time (“GCT”), 30 days of disciplinary segregation, 90 days loss of phone privileges, and a monetary fine of $50.00. Id. at ¶ 24. For violating code 196, he was sanctioned with 41 days loss of GCT, 30 days of disciplinary segregation, 90 days loss of phone privileges, and a monetary fine of $50.00. Id. For his violation of code 297, he was sanctioned with 27 days loss of GCT, 90 days loss of phone privileges, and a monetary fine of $30.00. Id.

         Petitioner claims his procedural due process rights were violated in the disciplinary hearing. He also contends the evidence was insufficient to support the findings. Respondent contends that Petitioner was afforded all the procedural and substantive due process rights he was entitled to, and requests the petition be denied. The Court[1] will DENY the petition.

         I. BACKGROUND

         Petitioner is currently incarcerated at FCI Berlin serving a 420-month sentence for having been found guilty of conspiring to possess with intent to distribute and distribution of at least 500 grams of cocaine and at least 50 kilograms of marijuana. Id. at ¶ 5.

         On July 20, 2017, Petitioner filed a federal petition for writ of habeas corpus in this Court. As previously stated, he does not challenge his conviction, but a disciplinary proceeding held on December 7, 2015. Id. at ¶ 16. He claims his procedural due process rights were violated in the disciplinary hearing because he was not provided proper notice of the charges, he was denied his right to call a witness, and he was denied his right to an impartial hearing officer. He also claims that the substance at issue was not properly tested, that a charge was erroneously added at the hearing of which Petitioner had no notice, that a charge was duplicative, and that the fine imposed was invalid. He further alleges that the hearing officer made several factual errors and that resulted in an erroneous finding of guilt.

         On November 8, 2017, Respondent filed an answer to the petition. (Doc. No. 14.) Petitioner did not file a reply to Respondent's answer.

         II. DISCUSSION

         A. Jurisdiction

         Writ of habeas corpus relief 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 pursuant to 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., Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990); Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991). 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); Jalili, 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); Barden, 921 F.2d at 479 (arguing Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in state custody); Brown, 610 F.2d at 677 (challenging content of inaccurate pre-sentence report used to deny parole).

         In this case, Petitioner challenges the execution of his sentence. Therefore, the Court has jurisdiction to consider the petition pursuant to 28 U.S.C. § 2241.

         B. Venue

         A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. Brown, 610 F.2d at 677. Petitioner was in the custody of the Bureau of Prisons at USP Atwater, which is located within the jurisdiction of this Court, at the time he filed the petition. 28 U.S.C. §§ 2254(a); 2241(d). Therefore, venue is proper in this Court.

         C. ...


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