(HC) Crim v. Adler, et al., No. 1:2009cv01944 - Document 7 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 signed by Magistrate Judge Gary S. Austin on 11/17/2009. The Court RECOMMENDS That the Petition for Writ of Habeas Corpus be DISMISSED Because the Petition Does not Allege Grounds That Would Entitle Petitioner to Relief Under 28 U.S.C. 2241. Referred to Judge Oliver W. Wanger. Objections to F&R due by 12/21/2009. (Bradley, A)

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(HC) Crim v. Adler, et al. Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN MICHAEL CRIM, 12 Petitioner, 13 v. 14 NEIL H. ADLER, Warden, 15 Respondents. 16 ) ) ) ) ) ) ) ) ) ) ) 1:09-CV-01944 OWW GSA HC FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 17 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241. 19 Petitioner is in the custody of the Bureau of Prisons at the Taft Correctional Institution 20 located in Taft, California, for convictions sustained in the United States District Court for the 21 Eastern District of Pennsylvania. On November 5, 2009, Petitioner filed the instant petition for writ 22 of habeas corpus. 23 DISCUSSION 24 A federal prisoner who wishes to challenge the validity or constitutionality of his conviction 25 or sentence must do so by way of a motion to vacate, set aside, or correct the sentence under 28 26 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); Thompson v. Smith, 719 27 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997); Broussard v. Lippman, 28 U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing court has jurisdiction. 2 Tripati, 843 F.2d at 1163. A prisoner may not collaterally attack a federal conviction or sentence by 3 way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States, 4 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 5 F.2d 840, 842 (5th Cir.1980). 6 In contrast, a federal prisoner challenging the manner, location, or conditions of that 7 sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. 8 Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 9 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United 10 States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3rd 11 Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v. United 12 States, 610 F.2d 672, 677 (9th Cir. 1990). 13 In this case, Petitioner was found guilty on two counts, and he was sentenced to “96 months 14 on counts one and two of the superseding indictment concurrently.” See Petition, Exhibit A. 15 Petitioner claims the sentence he received is illegal because it is not plain, unequivocal, articulate or 16 identifiable. He asserts that the maximum sentence on count one is 60 months and the maximum on 17 count two is 36 months. He claims the sentence he was given of 96 months is incorrect and should 18 actually reflect a maximum of 60 months. Because he alleges error in his sentence, and not in the 19 administration of his sentence, the Court finds that Petitioner is not entitled to relief under § 2241, 20 and his petition should be dismissed. Should the Petitioner wish to pursue his claims, he must do so 21 by way of a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255.1 The 22 petition must be dismissed. 23 RECOMMENDATION 24 Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be 25 DISMISSED because the petition does not allege grounds that would entitle Petitioner to relief under 26 27 28 1 A petition for writ of habeas corpus pursuant to § 2255 must be filed in the court where petitioner was originally sentenced. In this case, Petitioner challenges his sentence sustained in the U.S. District Court for the Eastern District of Pennsylvania. U .S. D istrict C ourt E. D . C alifornia cd 2 1 28 U.S.C. § 2241. 2 These Findings and Recommendations are submitted to the Honorable Oliver W. Wanger, 3 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 4 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of 5 California. Within thirty (30) days after being served with a copy, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Replies to the objections shall 8 be served and filed within ten (10) court days (plus three days if served by mail) after service of the 9 objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 10 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive 11 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 14 IT IS SO ORDERED. Dated: 6i0kij November 17, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 3

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