Juda v. Chavez

Filing 24

ORDER that the R&R Doc. # 22 is accepted and adopted, the Objections Doc. # 23 are overruled, the Petition Doc. # 1 is denied, with prejudice, and the Clerk of the Court shall enter judgment accordingly. Signed by Judge James A Teilborg on 3/22/10. (KMG)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Olaf Peter Juda, Petitioner, vs. Ricardo E. Chavez, Respondents.

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No. CV 09-1475-PHX-JAT ORDER

Pending before this Court is Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241. On February 26, 2010, the Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) recommending that the Petition be denied. On March 8, 2010, Petitioner timely filed objections to the R&R. This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Because Petitioner filed objections, the Court will review the R&R de novo. Petitioner's claim in this case stems from the Second Chance Act, which permits the Bureau of Prisons to release an inmate to either a community correctional facility or home confinement up to twelve months before the inmate's release date to increase the likelihood

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of the inmate's successful reentry into the community. R&R at 2-3. The Bureau of Prisons evaluated Petitioner for this program and determined he would be placed in a community correctional facility six months prior to his release date. Id. at 2. Petitioner appealed this decision through the prison's administrative review process arguing he wanted to be placed in the community correctional facility twelve months prior to his release.1 Id. Petitioner does not dispute the R&R's recounting of the factors the law requires the Bureau of Prisons to consider in deciding pre-release placement, nor the factual result of Petitioner's individual review. R&R at 2-4. Instead Petitioner argues more globally that the review process is not really individualized,2 which the law requires, and that the Bureau of Prison has a "presumptive" six month placement policy. Objections at 3. Petitioner's evidence for this assertion is his observations of what other inmates have received and some information he asserts he learned from a symposium in 2008. Objections at 2. Finally, Petitioner asserts that discovery in this case would show the Bureau of Prison's "real" procedure. Objections at 3. As the R&R recounts, the Bureau of Prisons has discretion of how to implement the Second Chance Act, within certain guidelines. R&R at 2-3. In Petitioner's case, the Bureau of Prisons exercised that discretion and specifically applied the guidelines. R&R at 3 (quoting the Warden's decision in Petitioner's case). Petitioner claims that, with discovery into other inmate's releases, he could establish that the Warden's exercise of his discretion is the same in every case.

The R&R calculates Petitioner's release date to be in August 2010, which is less than six months from today. Therefore, the Petition may be moot. However, Petitioner in his objections at footnote 1 specifically claims the Petition is not moot. Conversely, the Warden's finding specifically said it was an individualized review. R&R at 3. -22

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The Court finds that discovery in this case is not warranted.3 Specifically, even if Petitioner's claims were true, i.e. that in the majority of cases the Warden determines six months prior to release is appropriate, such claims would not mean the that the Warden was failing to "really" exercise discretion and simply applying a pre-determined six month number. Further, the Court agrees with the R&R that there is nothing in this record to suggest Petitioner did not receive all consideration to which he was entitled under the Second Chance Act. R&R at 4. Accordingly, IT IS ORDERED that the R&R (Doc. #22) is accepted and adopted, the Objections (Doc. #23) are overruled, the Petition (Doc. #1) is denied, with prejudice, and the Clerk of the Court shall enter judgment accordingly. DATED this 22nd day of March, 2010.

Discovery is available in habeas cases only if Petitioner shows "good cause." Estrada v. Chavez, 2009 WL 1383328, *1 (D. Ariz. 2009) (applying Rule 6(a) of the Rules Governing Section 2254 to a Section 2241 case). -3-

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