-CMK (TEMP)(HC) Whitmire v. United States, No. 2:2010cv00185 - Document 20 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 2/2/11 RECOMMENDING that Petitioners application for writ of habeas corpus be denied; and this case be closed. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 20 days.(Dillon, M)
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-CMK (TEMP)(HC) Whitmire v. United States Doc. 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JAMES WHITMIRE, 11 12 13 Petitioner, No. CIV-S-10-0185 FCD CMK (TEMP) P vs. RICHARD B. IVES,1 14 Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 Petitioner is a federal prisoner proceeding pro se with an application for writ of 17 habeas corpus under 28 U.S.C. § 2241. He is currently serving a sentence of 120 months 18 imprisonment for possession of a firearm by a felon. Answer, Attach. A at 2. Judgment was 19 entered on April 26, 2006 and petitioner’s current release date is January 5, 2012. Id. at 1-2. 20 Petitioner asserts that he has been improperly denied entry into a 500 hour 21 residential drug abuse program and seeks placement in that program. Respondent identifies the 22 program referenced by petitioner as the Residential Drug Abuse Program (RDAP). Petitioner 23 asserts that one of the conditions of entry into the program is that he used drugs during the 12 24 25 26 1 Richard Ives, the warden at petitioner’s current place of incarceration, is hereby substituted as respondent in this action. Dunbar v. Cranor, 202 F.2d 949, 950 (9th Cir. 1953). See Fed R. Civ. P. 25(d). 1 Dockets.Justia.com 1 month period before he was arrested for the crime which led to his current sentence. Petitioner 2 asserts he was denied entry into RDAP based on a finding that he did not meet this requirement. 3 Petitioner insists he did meet the requirement because during the 12 month period before his 4 arrest, the DEA opened a “drug case” against him. 5 Petitioner fails to point to any law in support of his claim that he was improperly 6 denied entry into RDAP. In any case, the general rule is that the authority to determine which 7 inmates participate in RDAP rests solely with the Federal Bureau of Prisons. Downey v. 8 Crabtree, 100 F.3d 662, 670 (9th Cir. 1996). Petitioner fails to identify any reason for departure 9 from that rule. 10 Furthermore, there is no evidence before the court indicating petitioner used drugs 11 within the 12 month period before he was arrested. While petitioner does point to evidence 12 indicating he may have been charged with an offense related to drugs (Am. Pet. at 6 & 7), 13 nothing in the record shows drug use. 14 Finally, the evidence before the court indicates that, after filing the operative 15 habeas petition, petitioner declined participation in RDAP (Answer, Attach. C) thereby rendering 16 moot any claim petitioner might have for RDAP placement. For these reasons, the court will 17 recommend that petitioner’s application for writ of habeas corpus be denied. 18 In accordance with the above, IT IS HEREBY RECOMMENDED that: 19 1. Petitioner’s application for writ of habeas corpus be denied; and 20 2. This case be closed; 21 These findings and recommendations are submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 23 days after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 26 shall be served and filed within ten days after service of the objections. The parties are advised 2 1 that failure to file objections within the specified time may waive the right to appeal the District 2 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 DATED: February 2, 2011 5 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 6 7 8 9 kc whit0185.157 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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