Fourstar v. Salazar, No. 3:2019cv00193 - Document 18 (D. Or. 2019)
Court Description: OPINION AND ORDER: The Petition for Writ of Habeas Corpus 2 is denied. The Court declines to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). (See 6-page opinion for more information.) Signed on 8/12/19 by Judge Michael H. Simon. (Mailed to Pro Se party on 8/12/2019.) (dsg)
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Fourstar v. Salazar Doc. 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON VICTOR CHARLES FOURSTAR, Case No. 3:19-cv-00193-SI Petitioner, OPINION AND ORDER v. JOSIAS SALAZAR, Respondent. Victor Charles Fourstar P.O. Box 252 Wolf Point, MT 59201 Petitioner, Pro Se Billy J. Williams United States Attorney Austin Rice-Stitt, Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97204-2902 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com SIMON, District Judge. Petitioner brings U.S.C. his corpus case pursuant to 28 § 2241 in which he appears to challenge the execution of sentence, prior this habeas the criminal conditions proceedings. of For his the confinement, reasons and various that follow, the from his Petition for Writ of Habeas Corpus (#2) is denied. BACKGROUND While Petitioner was on supervised conviction from Aggravated Sexual Abuse, of his release. As a result, release he violated the terms on October 18, 2018, the District of Montana revoked his supervised release and sentenced him to ten months confinement to be followed by 39 months of supervised release. The Bureau of Prisons ("BOP") established Petitioner's projected release date as June 30, 2019, and it appears that the BOP released him at that time. 1 Following Petitioner revocation the filed this 28 U.S.C. of § his 2241 supervised habeas corpus release, case on February 7, 2019 alleging that the BOP violated his rights under the First, Fourth, Sixth, Eighth, and Fourteenth Amendments as well as the 1868 Fort Laramie Treaty and Indian Civil Rights Act when it: ( 1) erred in computing his sentence; and ( 2) did not provide him with his desired amount of home confinement, time in 1 Petitioner changed his address to a Post Office box on July 9, 2019. 2 - OPINION AND ORDER a Residential Reentry Center ( "RRC") , and gratuity. He also appears to claim that he is actually innocent of his underlying criminal conduct such that the BOP's refusal to extend his time in RRC placement due to an inaccurate criminal history are unlawful. Respondent asks the Court to deny relief because: ( 1) most of Petitioner's claims amount to conclusory allegations without factual support; (2) his contention that he is entitled to extended RRC placement does not state a cognizable habeas corpus claim; (3) even if the RRC claim were cognizable in habeas, the Court lacks jurisdiction to grant the relief requested; and (4) Petitioner failed to exhaust his administrative remedies, leaving his claims ineligible for habeas corpus review. DISCUSSION It appears that Petitioner's principal claim is that his Warden illegally refused to provide him with the maximum amount of RRC time available. Based upon Petitioner's June 30 release, his claim pertaining Biodiversity Legal ( 9 th Cir. 2002) to extended Foundation v. RRC Badgley, placement 309 is F.3d 1166, moot. 1173 ( "an actual controversy must exist at all stages of the litigation") . Even if this were not the case, Petitioner would not be entitled to habeas relief as to his RRC claim because federal 3 - OPINION AND ORDER courts lack jurisdiction to review the BOP's determinations pertaining to RRC placement. F.3d 1224, 1227-28 (9th Cir. 2011) individualized Reeb v. Thomas, 636 (no habeas jurisdiction in the context of BOP discretionary decisions made pursuant to 18 U.S.C. §§ 3621-24); Mohsen v. July 29, 2014) Graber, 583 Fed. Appx. 841, (9 th Cir. 842 (no RRC jurisdiction pursuant to Reeb). Moreover, RRC placement is simply another form of custodial housing, prisoners security do 789 215, 461 U.S. 224 (9 th Cir. "may" have a classification Wakinekona, U.S. not protected or 238, (1976); 1991); place 244-45 liberty of see also 28 in incarceration. (1983); United States v. interest Meachum Laughlin, U.S.C. § v. and their Olim Fano, v. 427 933 F.2d 786, 3624 (c) (1) (the BOP (not "must") place an inmate in a RRC during the last year of his sentence) . 2 Petitioner also claims to be actually innocent of multiple state and federal convictions and supervised release revocations. A § 2241 petition is typically used to challenge only the execution of a federal sentence, but it can also be utilized in limited cases petitioner: 2 (1) under the "escape hatch" of § makes a claim of actual innocence; 2255 and when a (2) has Petitioner asserts that the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015) and United States v. Davis, 139 S.Ct. 2319, should enable him to seek home confinement and, thus, community-based medical and mental health treatment. As discussed within this Opinion, Petitioner's claim for additional RRC placement is moot and also not cognizable in habeas. 4 - OPINION AND ORDER not had an "unobstructed procedural shot" at presenting that claim. Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003). In this case, Petitioner argues that he is actually innocent of a variety of prior criminal behavior, thus the BOP's refusal to provide him with maximum RRC placement is unlawful because he has a flawed criminal history. He maintains that at some point in the future he "will produce new reliable evidence and [an] expert witness after his tribal court proceedings showing the state and U.S. lacked probable cause and accuser(s) suppressed." Supplemental Memorandum lacked credibility but (#12), p. 11. Petitioner's assertion that he will be proven innocent in a future proceeding based upon lack of probable cause and accuser credibility does not constitute a did, viable claim of actual Petitioner's underlying claim is innocence. that he is Even if it entitled to additional RRC placement, an issue that is not cognizable even if it were not moot. To the extent Petitioner calculation of his federal administrative remedies as seeks sentence, to Declaration of Jennifer Vickers this to challenge he has (or the BOP's not exhausted his any other) issue. 3 (#10). Requiring a petitioner to 3 Petitioner's assertion that the exhaustion requirement does not apply to him because the BOP recently released him from custody is unavailing. See Jones v. Bock, 549 U.S. 199, 211 (2007) (exhaustion of administrative remedies required prior to filing suit) i Brown v. Maass, 11 F.3d 914, 915 (9th Cir. 1993) (proper time to determine exhaustion is at the time of filing). 5 - OPINION AND ORDER exhaust his administrative remedies is important because it aids "judicial review by allowing the appropriate factual record in an expert forum." 844, 845 (9th 1983). Cir. Use development Ruviwat v. of available Smith, 701 of a F.2d administrative remedies conserves "the court's time because of the possibility that the relief applied for may be granted at the administrative level." Id. Where Petitioner has not exhausted his administrative remedies regarding the calculation of his sentence, the Court declines to address the issue on its merits. 4 CONCLUSION For the reasons identified above, Habeas Corpus Certificate of (#2) is denied. Appealability on The the the Petition for Writ of Court basis declines that to issue a Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. DATED this r L 1:--' day United States District Judge 4 To the extent Petitioner moves in his Supplemental Reply for leave to amend his Petition, that request is denied for lack of service and because it is untimely. 6 - OPINION AND ORDER
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