Ortiz v. United States of America

Filing 14

REPORT AND RECOMMENDATION re 12 MOTION for Emergency Release, Recommend denying motion. Signed by Magistrate Judge Charles R Pyle on 6/23/09. (KMF, )

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES OF AMERICA, vs. VICENTE ORTIZ, Petitioner/Movant, ) ) ) ) ) ) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

No. CV 08-550-PHX-MHM (CRP) CR 04-1303-PHX-MHM

) ) Respondent. ) __________________________________ )

) )

REPORT AND RECOMMENDATION

Movant requests emergency release from prison, alleging the Government is incarcerating him beyond his sentence. (Doc 12). Movant has two active cases in Arizona District Court, his criminal case and his related habeas petition pursuant to 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence. See USA v. Ortiz, cr-04-1303-PHXMHM; and Ortiz v. USA, cv-08-550-PHX-MHM (CRP). Movant filed his Motion for Emergency Release (Doc 12) under the case number for his pending Habeas Petition. Movant argues the Government is incarcerating him beyond his sentence due to a miscalculation of his time-served credits. The docket in Movant's criminal case shows Movant is being held for violating conditions of his supervised release. (USA v.Ortiz; cr-041303, Docs 128, 142). Habeas corpus is the proper proceeding in which to challenge the legality or duration of confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir.1991). Movant's request for emergency release, however, is unrelated to his underlying habeas petition challenging the constitutionality of the sentence imposed. Furthermore, Movant essentially requests

injunctive relief from his current confinement. Injunctive relief is appropriate when the intermediate relief is of the same character as that which may be granted finally. Relief is

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not proper when requested on matters lying wholly outside the issues in suit. DeBeers Consol. Mines v. United States, 325 U.S. 212, 220 (1945). Movant has not established that his request for emergency release relates to his request for habeas relief from his original criminal sentence. Movant's request for an injunction is inappropriate as it lies wholly outside the issues in his habeas petition. III. RECOMMENDATION Based on the foregoing, the Magistrate Judge recommends that the District Court, after its independent review and analysis, enter an order DENYING Movant's request for emergency release. (Doc 12). This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the court. See 28 U.S.C. § 636(b); Fed.R.Civ.P.Rules 72. The parties are advised that any objections filed are to be identified with the following case number: cv-08-550-MHM. The Clerk is directed to mail a copy of the Report and Recommendation to Movant and counsel for Respondents. DATED this 23rd day of June, 2009.

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