(HC) Rizzolo v. Puentes, No. 1:2019cv00290 - Document 6 (E.D. Cal. 2019)
Court Description: ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DISMISSED and 3 Petitioner's Motion for Summary Judgment be DENIED signed by Magist rate Judge Sheila K. Oberto on 3/14/2019. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Sheila K. Oberto. The new case number is 1:19-cv-00290-DAD-SKO (HC). Referred to Judge Drozd. Objections to F&R due within thirty (30) days. (Jessen, A)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FREDERICK RIZZOLO, 12 13 14 No. 1:19-cv-00290-SKO (HC) Petitioner, v. G. PUENTES, Warden, 15 FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AND DENY MOTION FOR SUMMARY JUDGMENT Respondent. ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 16 17 (Docs. 1, 3) 18 19 20 Petitioner, Frederick Rizzolo, is a federal prisoner proceeding pro se with a petition for writ 21 of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner contends the Bureau of Prisons (“BOP”) 22 has failed to recalculate his sentence and correct his award of good conduct time pursuant to the 23 First Step Act of 2018, S. 756, 115th Cong. (2018). (Doc. 1 at 2-3). Petitioner further alleges he 24 25 is “due an increase in the time he is to be qualified to be given in the half way house or home confinement.” Id. at 3-4. 26 27 28 Petitioner has also filed a motion for summary judgment requesting that the Court grant him relief pursuant to the First Step Act. (Doc. 3.) For the reasons discussed below, the undersigned 1 1 recommends that the motion for summary judgment be DENIED and the petition be DISMISSED. 2 I. 3 Background On November 3, 2017, Petitioner was convicted of attempting to evade and defeat the 4 payment of taxes in violation of 26 U.S.C. § 7201 in the United States District Court for the District 5 6 of Nevada. Id. at 24. Petitioner was sentenced to 24 months’ imprisonment and is serving his 7 sentence at the Federal Correctional Institution – Taft. (“FCI Taft”). 8 II. 9 10 11 Discussion A. Motion for Summary Judgment The purpose of a motion for summary judgment is to “‘smoke out’ the facts so that the judge can decide if anything remains” for a trial. Walker v. Hoffman, 583, F.2d 1073, 1075 (9th Cir. 12 13 14 1978). The motion is intended to prevent a trial over facts that are not genuinely in dispute. See advisory Committee Notes, Fed.R.Civ.P. 56, 1963 Amendment (“The very mission of the summary 15 judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there 16 is a genuine need for trial.”). 17 “[T]he writ of habeas corpus is not a proceeding in the original criminal prosecution but an 18 independent civil suit.” Riddle v. Dyche, 262 U.S. 333, 335-36 (1923). The habeas corpus 19 procedure has the same function as an ordinary appeal and the petition does not proceed to “trial.” 20 21 Anderson v. Butler, 886 F.2d 111, 113 (5th Cir. 1989); O’Neal v. McAnnich, 513 U.S. 440, 442 22 (1995). Further, since the passage of the Anti-Terrorism and Effective Death Penalty Act, 23 evidentiary hearings in habeas cases are “rare.” Cullen v. Pinholster, 563 U.S. 170, 203 (2011) 24 (Alito, J., concurring in part & concurring in judgment). Because the Court’s analysis of the merits 25 of a habeas petition is equivalent to a summary judgment motion, “[m]otions for summary 26 judgment are inappropriate in federal habeas cases.” Johnson v. Siebel, 2015 WL 9664958, at *1 27 n.2 (C.D. Cal. Aug. 4, 2015) (citing Mulder v. Baker, 2014 WL 4417748, at *1-*2 (D. Nev. Sept. 28 2 1 8, 2014), Gussner v. Gonzalez, 2013 WL 458250, at *3-*5 (N.D. Cal. Feb. 5, 2013); Ordway v. 2 Miller, 2013 WL 1151985, at *1 (E.D. Cal. Mar. 19, 2013)). 3 For the foregoing reasons, the summary judgment motion is inappropriate in this case, and 4 the undersigned recommends denying the motion. 5 6 B. Preliminary Review of Petition 7 Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary 8 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly 9 appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules 10 11 Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears 12 13 14 that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 15 C. Jurisdiction 16 A federal prisoner who seeks to challenge the validity or constitutionality of his federal 17 conviction or sentence must do so by filing a motion to vacate, set aside, or correct the sentence 18 under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1161-62 (9th Cir. 1988); Stephens v. 19 Herrera, 464 F.3d 895, 897 (9th Cir. 2006). A prisoner challenging the manner, location, or 20 21 conditions of the execution of his sentence may bring a petition for a writ of habeas corpus under 22 28 U.S.C. § 2241 in the district in which he is in custody. Stephens, 464 F.3d at 897; Hernandez 23 v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). 24 Here, Petitioner alleges BOP has failed to calculate his sentence properly pursuant to the 25 recently enacted First Step Act of 2018. He also alleges he should receive more time in a halfway 26 house or home confinement. As Petitioner is challenging the execution of his sentencing, these 27 claims are proper under 28 U.S.C. § 2241. 28 3 1 2 3 III. Petitioner Failed to Exhaust Administrative Remedies “Federal prisoners are required to exhaust their federal administrative remedies prior to bringing a petition for writ of habeas corpus in federal court.” Martinez v. Roberts, 804 F.2d 570, 4 571 (9th Cir. 1986) (internal citations omitted). The exhaustion requirement 5 6 7 8 9 10 11 aid[s] judicial review by allowing the appropriate development of a factual record in an expert forum; conserv[ing] the court’s time because of the possibility that the relief applied for may be granted at the administrative level; and allow[ing] the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings. Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). Although § 2241 does not specifically require exhaustion, courts “require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before 12 13 14 seeking relief under § 2241.” Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds, Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). 15 Because the exhaustion requirement is not a “‘jurisdictional prerequisite,’ it is subject to 16 waiver in § 2241 cases.” Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). “[T]he district 17 court must determine whether to excuse the faulty exhaustion and reach the merits, or require the 18 petitioner to exhaust his administrative remedies before proceeding in court.” Brown v. Rison, 895 19 F.3d 533, 535 (9th Cir. 1990), overruled on other grounds, Reno v. Koray, 515 U.S. 50 (1995). 20 21 The exhaustion requirement can be waived “if pursuing those administrative remedies would be 22 futile.” Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (citing Terrell 23 v. Brewer, 935 F.2d 1015, 1019 (9th Cir. 1991)). Other exceptions to the general exhaustion rule 24 include when administrative remedies are inadequate or ineffective, irreparable injury would result, 25 or administrative proceedings would be void. Laing v. Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 26 1981) (citing Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003) (internal quotation marks 27 omitted)). 28 4 1 Federal prisons have a specific administrative remedy procedure through which inmates can 2 present their claims to prison officials. Martinez, 804 F.2d at 570; 28 C.F.R. § 542.10(a) (the 3 4 administrative remedy program allows inmates to seek formal administrative review of an issue relating to any aspect of the inmate’s confinement). The BOP’s administrative review begins when 5 6 an inmate seeks informal resolution of the issues at the place of confinement. 28 C.F.R. § 542.13. 7 If that fails, the inmate must file a formal written administrative request on form BP-9 with the 8 warden. Id. at § 542.14. If the inmate is dissatisfied with the warden’s response, further review is 9 available by the BOP’s regional director. Id. at§ 542.15. Next, the inmate can seek review with 10 the BOP’s Officer of General Counsel. Id. A final decision from the Office of General Counsel 11 completes the BOP’s administrative review procedure. Id. at § 542.15(a). 12 Based on his petition and attached documents, it appears Petitioner submitted a request for 13 14 administrative remedies to the Warden at FCI Taft. (Doc. 1 at 13-51.) The Warden denied the 15 request on February 21, 2019. Id. at 12. It does not appear that Petitioner has sought relief at the 16 intermediate level or at the third level of review. 17 administratively exhaust his claims and the petition should be dismissed for lack of exhaustion. 18 IV. Consequently, Petitioner has failed to First Step Act of 2018 19 A. Good Conduct Time Credits 20 21 Petitioner claims that the Fist Step Act of 2018 mandates awarding a full 54 days per year 22 of good conduct time instead of the 47 days customarily awarded by the BOP pursuant to 18 U.S.C. 23 § 3624(b). Petitioner is correct that Section 102(b)(1) of the First Step Act of 2018 amended 18 24 U.S.C. § 3624(b) to permit federal inmates to earn 54 days of good conduct time for each year of 25 the sentence imposed. However, this provision has not yet taken effect. 26 27 In accordance with Section 102(b)(2) of the Act, the amendments made in this section only take effect when the Attorney General completes the “risk and needs assessment system” required 28 5 1 by Section 101(a) of the Act. Section 101(a) does not require completion of the system until 210 2 days after the Act’s enactment. Thus, Section 102(b)(1) will not take effect until approximately 3 July 2019. Consequently, Petitioner’s claim that the BOP must immediately recalculate his 4 sentence pursuant to the First Step Act lacks merit. 5 B. Placement in Halfway House 6 7 Petitioner contends he is entitled to more time at a halfway house based on the First Step 8 Act. The Act does not mandate BOP place prisoners in a halfway house for six months or any other 9 period. Under the current version of 18 U.S.C. § 3624(c), as amended by the Second Chance Act 10 11 of 2007, the BOP is authorized to consider placing an inmate in a community correctional facility for up to twelve months. However, a prisoner is neither entitled to, nor guaranteed such placement 12 13 14 for any minimum amount of time. 18 U.S.C. § 3624(c). See Berry v. Sanders, 2009 WL 789890, at *6-*7 (C.D. Cal. March 20, 2009); Guss v. Sanders, 2009 WL 5196153, at *4 (C.D. Cal. Dec. 15 29, 2009). The determination of whether an inmate is eligible is in the discretion of BOP. Reeb v. 16 Thomas, 636 F.3d 1224 (9th Cir. 2011) (Individualized determinations whether an inmate is eligible 17 for residential drug treatment program pursuant to 18 U.S.C. § 3621 is within the discretion of 18 BOP); Mohsen v. Graber, 583 Fed.Appx. 841, 842 (9th Cir. 2014) (Applying Reeb in the context 19 of individualized determination of eligibility for residential reentry center under § 3621). The First 20 21 Step Act does not alter this rule. 22 Further, the Court is precluded from reviewing BOP’s placement decisions. See Reeb, 636 23 F.3d at 1227. Therefore, any challenge to BOP’s discretionary decisions as to eligibility for 24 placement in a halfway house are not reviewable by this court. 25 V. 26 Conclusion and Recommendation Based on the foregoing, the undersigned recommends that Petitioner’s motion for summary 27 judgment be denied and the petition for writ of habeas corpus be dismissed.. 28 6 1 These Findings and Recommendations will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days 3 after being served with these Findings and Recommendations, either party may file written 4 objections with the Court. The document should be captioned AObjections to Magistrate Judge=s 5 6 Findings and Recommendations.@ Replies to the objections, if any, shall be served and filed within 7 fourteen (14) days after service of the objections. The parties are advised that failure to file 8 objections within the specified time may constitute waiver of the right to appeal the District Court's 9 order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 10 F.2d 1391, 1394 (9th Cir. 1991)). 11 The Court Clerk is hereby directed to assign a district judge to this action. 12 13 14 15 16 IT IS SO ORDERED. Dated: March 14, 2019 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 7 .
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
