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McBride v. Shinn

United States District Court, E.D. California

July 22, 2019

RANDALL MCBRIDE, Petitioner,
v.
D. SHINN, Respondent.

          FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS, DENY PETITIONER'S MOTION TO PROCEED TO MERITS, AND RECHARACTERIZE § 2241 PETITION AS § 2255 MOTION (ECF NOS. 10, 23)

         Petitioner Randall McBride is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner asserts that he is serving a term of imprisonment that is beyond what his sentence should reflect.

         Before the Court are Respondent's motion to dismiss and Petitioner's motion to proceed to the merits of the petition. As Petitioner has failed to satisfy the requirements to bring a § 2241 habeas petition under the savings clause of § 2255(e), the undersigned recommends granting Respondent's motion to dismiss, denying Petitioner's motion to proceed to the merits, and recharacterizing the § 2241 petition as a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255.

         I.

         BACKGROUND

         Petitioner pleaded guilty in the United States District Court for the Eastern District of California to being a felon in possession of a firearm, in violation of 18 U.S.C. § 822(g), and possessing an unregistered firearm, in violation of 21 U.S.C. § 5861(d). Judgment at 1, United States v. McBride, No. 1:14-cr-00233-DAD-BAM (E.D. Cal. Aug. 16, 2016), ECF No. 22.[1] On August 15, 2016, Petitioner was sentenced to “51 months on each of Counts 1 and 2, to be served CONCURRENTLY for a total term of 51 months, CONSECUTIVE to any undischarged term of imprisonment.” Id. at 2.

         On July 23, 2018, Petitioner filed the instant petition for writ of habeas corpus. (ECF No. 1). Therein, Petitioner asserts the following claims for relief: (1) incarceration beyond his maximum term of imprisonment based on a failure to properly credit the time Petitioner served in state custody while his federal case was pending; and (2) ineffective assistance of trial counsel for failing to litigate the issue of pre-sentencing detention credit at Petitioner's sentencing hearing. This Court transferred the petition to the United States District Court for the Central District of California based on the erroneous premise that the petition challenged a conviction from San Bernardino County. (ECF No. 2).

         On January 31, 2019, Respondent filed a motion to dismiss in the United States District Court for the Central District of California. (ECF No. 10). Therein, Respondent argues that the petition should be dismissed because: (1) Petitioner failed to exhaust his administrative remedies; (2) Petitioner's ineffective assistance of counsel claim should have been brought pursuant to 28 U.S.C. § 2255; and (3) a petition brought under § 2241 must be brought in the district of incarceration, which is the Eastern District of California. (ECF No. 10 at 26).[2] In response to the motion to dismiss, Petitioner filed a motion to transfer the case to the Eastern District. (ECF No. 14). On April 10, 2019, the United States District Court for the Central District of California ordered that the action be transferred to this Court. (ECF No. 15).

         On May 16, 2019, Respondent gave notice that he will rely on the January 31st response and motion to dismiss previously filed in the United States District Court for the Central District of California. (ECF No. 22). On June 17, 2019, Petitioner moved the Court to proceed to the merits of the petition. (ECF No. 23).

         II.

         DISCUSSION

         A. Exhaustion

         In the motion to dismiss, Respondent argues that the petition should be dismissed because Petitioner has failed to exhaust administrative remedies. (ECF No. 10 at 10). “As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). The exhaustion requirement is subject to waiver in § 2241 proceedings if pursuing available remedies would be futile. Id.

         Here, Petitioner did not file any formal administrative grievance regarding his sentence computation or release date, and thus, has failed to exhaust administrative remedies. Petitioner contends, however, that he “does not have to file an administrative remedy when to do so would be futile where the Bureau of Prisons has no judicial authority to correct the issue.” (ECF No. 1 at 5; ECF No. 23 at 1).

         In the petition, Petitioner argues that he is being incarcerated beyond his maximum term of imprisonment based on a failure to properly credit the time Petitioner served in state custody while his federal case was pending. Respondent has construed Petitioner's claim as arguing that the BOP failed to properly credit the time Petitioner served in state custody while his federal case was pending. (ECF No. 10 at 7). However, the federal sentencing court ordered that Petitioner's federal sentence be served consecutive to any undischarged term of imprisonment, and given that Petitioner contends exhausting administrative remedies would be futile because “the Bureau of Prisons has no judicial authority to correct the issue, ” the Court will construe Petitioner's claim as asserting that the sentencing court erred in ordering that Petitioner's federal sentence be served consecutive to any undischarged term of imprisonment. See Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se pleadings and motions liberally).[3]

         As the Court has construed the petition as asserting that the sentencing court, rather than the BOP, erred, the Court finds that pursuing administrative remedies would be futile and dismissal ...


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