Randock v. Adler
Filing
7
ORDER DISMISSING Petition For Writ Of Habeas Corpus, ORDER Directing Clerk Of Court To Enter Judgment And Close Case, signed by Magistrate Judge Gary S. Austin on 3/4/2010. CASE CLOSED. A certificate of appealability is not required in this case.(Scrivner, E)
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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 NEIL H. ADLER, 13 Respondent. 14 15 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2241. Petitioner has returned his consent/decline form indicating consent 17 to the jurisdiction of the Magistrate Judge. 18 BACKGROUND 19 Petitioner is currently serving a sentence of 36 months for convictions sustained in the 20 United States District Court for the Eastern District of Washington. He is incarcerated at Taft 21 Correctional Institution located in Taft, California. Petitioner has a projected release date, via 22 good conduct time release, of May 5, 2011. 23 Petitioner filed the instant federal petition for writ of habeas corpus on January 21, 2010. 24 He asks that the Court order the Bureau of Prisons ("BOP") to immediately evaluate him for 25 transfer to a Residential Re-entry Center ("RRC"). 26 DISCUSSION 27 A federal court may only grant a petition for writ of habeas corpus if the federal petitioner 28 1 / v. ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE STEVEN KARL RANDOCK, Petitioner, 1:10-cv-00170 GSA HC ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
UNITED STATES DISTRICT COURT
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can demonstrate that he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(a), (c)(3). A habeas corpus petition is the correct method for a prisoner to challenge "the very fact or duration of his confinement," and where "the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment." Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Any deprivation that does not affect the fact or duration of a prisoner's overall confinement is necessarily a condition of that confinement. Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999). In other words, if a successful conditions of confinement challenge would not necessarily shorten the prisoner's sentence, then § 1983 is the appropriate vehicle. See Wilkinson v. Dotson, 544 U.S. 74 (2005). In the federal context, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), provides petitioners with a remedy for violation of civil rights by federal actors. C.f., Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (challenges to conditions of confinement by state prisoners should be presented in a 42 U.S.C. § 1983 civil rights action rather than a habeas corpus petition). In the instant petition, Petitioner's requests that the BOP immediately consider him for transfer to an RRC for the full twelve months as provided in 18 U.S.C. § 3624(c) as amended by the Second Chance Act of 2007, Pub. L. No. 110-199. This claim does not challenge the fact or duration of Petitioner's sentence. The Ninth Circuit has clarified that release to an RRC is not a release from incarceration. Rodriguez v. Smith, 541 F.3d 1180 (9th Cir.2008). Therefore, a transfer to an RRC will not affect the fact or duration of his confinement, and therefore does not give rise to a claim for which habeas relief can be granted. Accordingly, this Court does not have subject matter jurisdiction to review the instant challenge under section 2241, and the petition must be dismissed. In addition, the determination whether Petitioner should be placed in an RRC is entirely within the discretion of the BOP. The Court is not aware of any authority which would require the BOP to conduct an eligibility determination or immediate transfer upon an inmate's demand. In any case, the BOP has instituted a policy of evaluating inmates for RRC placement 2
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upon demand. Petitioner also complains that the BOP's current policy of evaluating him within 17 to 19 months of his projected release date may foreclose him from seeking federal review because of the exhaustion requirement. This claim is completely speculative, because it assumes the BOP will not grant Petitioner placement in an RRC. Even assuming the BOP does not grant him RRC placement, the exhaustion requirement would not necessarily bar him from federal review. The exhaustion requirement was judicially created; it is not a statutory requirement. Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984); Montgomery v. Rumsfeld, 572 F.2d 250, 252 (9th Cir.1978). Because exhaustion is not required by statute, it is not jurisdictional. Morrison Knudsen Co., Inc. v. CHG Int'l, Inc., 811 F.2d 1209, 1223 (9th Cir.1987), cert. dismissed, 488 U.S. 935 (1988); Montgomery, 572 F.2d at 252. "Where exhaustion of administrative remedies is not jurisdictional, the district court must determine whether to excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court." Brown v. Rison, 895 F.2d 533, 535 (9th Cir.1990). Therefore, in light of the timing issues that Petitioner contends might occur, exhaustion could be excused in the court's discretion. ORDER Accordingly, IT IS HEREBY ORDERED: 1) The petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE; 2) The Clerk of Court is DIRECTED to enter judgment and close the case; and 3) A certificate of appealability is not required in this case. Forde v. U.S. Parole Comm'n, 114 F.3d 878, 879 (9th Cir.1997).
IT IS SO ORDERED. Dated: 6i0kij
March 4, 2010
/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE
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