Xavier Monique Fields v. Joseph Woodring

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Virginia A. Phillips. It is Ordered that Judgment be entered denying and dismissing the Petition without prejudice. (Attachments: # 1 R&R) (sp)

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 Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in Federal Custody" on March 31, 2008. The Petition appears to PROCEEDINGS This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. XAVIER MONIQUE FIELDS, ) ) Petitioner, ) ) v. ) ) JOSEPH WOODRING, Warden, ) ) Respondent. ) ) ______________________________) NO. ED CV 08-426-VAP(E) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

challenge the Bureau of Prisons' refusal, in accordance with 28 C.F.R. section 570.21, to consider transferring Petitioner to a

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"CCC" ("Community Corrections Center")1 prior to Petitioner's service of 90 percent of his sentence and prior to the last six months of Petitioner's sentence. See Attachment to Petition; Declaration of

Corinne M. Nastro filed with Respondent's Answer (the "Nastro Decl.") at ¶ 6, Exhibits B and C). As enforced at the time of the Petition,

28 C.F.R. section 570.21(a) provided:

The Bureau will designate inmates to community confinement only as part of pre-release custody and programming, during the last ten percent of the prison sentence to be served, not to exceed six months.2

Petitioner asserts that the regulation is invalid as inconsistent with 18 U.S.C. section 3621(b), and has asked the Court to declare that section 570.21 is an improper exercise of the Bureau of Prisons' rulemaking authority.

The Bureau of Prisons defines a "Community Corrections Center" (now known as a "Residential Reentry Center") as: The location in which the Contractor's programs are operated; also called facility, center, community treatment center (CTC), or halfway house. A CCC is considered a penal or correctional facility. See Bureau of Prisons, Statement of Work, Community Corrections Center, Attachment F, p. 1 (Revision Dec. 2005), available at www.bop.gov/locations/cc/SOW_CCCs.pdf (last visited Oct. 3, 2008); see also Bureau of Prisons, Statement of Work, Residential Reentry Center, Attachment F (Aug. 2007) (defining "Residential Reentry Center"), available at www.bop.gov/locations/cc/ res_rentry_ctr_sow_2007.pdf (last visited Oct. 3, 2008); Rodriguez v. Smith, 2008 WL 4070264 *1, n.1 (9th Cir. Sept. 4, 2008) (discussing same). As discussed infra, the Bureau no longer enforces this aspect of section 570.21(a). 2
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Respondent filed an Answer on August 13, 2008.

Respondent

submits that the Petition is now moot because, based on new legislation and new Bureau of Prisons' policies, the Bureau of Prisons recently has given Petitioner the individualized consideration for early CCC placement Petitioner sought in the Petition. filed a Traverse on September 8, 2008. Petitioner

BACKGROUND

Following a guilty plea, the Court sentenced Petitioner in 2002 to 117 months in federal prison for armed bank robbery (Petition, p. 2). Petitioner currently is serving his sentence at the Terminal

Island Federal Correctional Institution in San Pedro, California (Nastro Decl. at ¶ 4(A)). Assuming Petitioner earns all available

good conduct time, he will be eligible for release on August 22, 2009 (Nastro Decl. at ¶ 4(C)).

On March 22, 2007, Petitioner submitted an "Inmate Request to Staff" form to his case manager, requesting that the Bureau of Prisons (the "Bureau") consider Petitioner for placement in a CCC facility for the last twelve months of his sentence (i.e., from August 22, 2008 through August 22, 2009) (Nastro Decl., Exhibit C). On May 22, 2007,

Petitioner's case manager denied the request, noting the need for uniformity under section 3621(b), and finding: "Six months maximum is

the BOP's (not to exceed 10%) decision/exercised discretion. (At this time.)" (Nastro Decl., Exhibit C).

On April 5, 2007, Petitioner submitted a second "Inmate Request 3

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to Staff" form to his case manager, asking for reconsideration in light of Wedelstedt v. Wiley, 477 F.3d 1160, 1162, 1167 (10th Cir. 2007) (Nastro Decl., Exhibit C). On April 9, 2007, the case manager

denied Petitioner's request, asserting that Petitioner would have to have been convicted in the Tenth Circuit and housed in the Tenth Circuit to qualify for consideration under the Wedelstedt case (Nastro Decl., Exhibit C).

On April 16, 2007, Petitioner submitted an "Informal Resolution" form to his correctional counselor, asking again for consideration for placement in a CCC for twelve months (Nastro Decl., Exhibit C). The

correctional counselor denied the request, claiming that August 2008 is the soonest Petitioner could be "submitted for [consideration of] community confinement" (Id.).

On or about April 26, 2007, Petitioner submitted a "Request for Administrative Remedy" to his warden, asking again to be considered for CCC placement beginning on August 22, 2008 (Nastro Decl., Exhibit C). The warden denied Petitioner's request on May 18, 2007, citing

Program Statement 7310.04, which provided: "An inmate may be referred [to a CCC] up to 180 days, with placement beyond 180 days highly unusual, and only possible with extraordinary justification" (Nastro

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Decl., Exhibit C).3

On May 23, 2007, Petitioner submitted a "Regional Administrative Remedy Appeal" form requesting immediate consideration for placement in a CCC during the last twelve months of his sentence (Nastro Decl., Exhibit C). On June 12, 2007, the regional director denied the

request, in accordance with Program Statement 7310.04's former timeline for making placement decisions. See Nastro Decl., Exhibit C

(also noting "we concur with the Warden's response"); see also Program Statement 7310.04 ("A final and specific release preparation plan, including a decision as to CCC referral, is normally established at a team meeting no later than 11 to 13 months before an inmate's projected release date.").

On July 16, 2007, Petitioner submitted a "Central Office Administrative Remedy Appeal," requesting immediate consideration for placement for twelve months in a CCC facility (Nastro Decl., Exhibit C). The Administrator of National Inmate Appeals denied the request

on October 4, 2007, noting that the staff would review Petitioner's pre-release needs as he got closer to his release date and would make an appropriate recommendation in accordance with 28 C.F.R. section 570.21 (Nastro Decl., Exhibit C). ///

Program Statement 7310.04 was the Bureau's Program Statement concerning CCC placement procedures. See Bureau of Prisons, Community Corrections Center (CCC) Utilization and Transfer Procedures (Dec. 16, 1998), available at http://www.bop.gov/policy/progstat/7310_004.pdf (last visited Oct. 2, 2008). The Statement set forth the Bureau's predecessor policy to 28 C.F.R. sections 570.20 and 570.21. 5

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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 I. Mootness Standards

DISCUSSION4

A federal court's jurisdiction is limited to cases or controversies. U.S. Const. art. III, § 2; see also Iron Arrow Honor "[A]

Society v. Heckler, 464 U.S. 67, 70 (1983) (discussing same).

federal court has no authority `to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'" Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). "If an event

occurs that prevents the court from granting effective relief, the claim is moot and must be dismissed." American Rivers v. National

Marine Fisheries Service, 126 F.3d 1118, 1123 (9th Cir. 1997) (citation omitted); see also Church of Scientology of Cal., 506 U.S. at 12 (noting that a case becomes moot when it is "impossible for the court to grant `any effectual relief whatever' to a prevailing party," quoting Mills, 159 U.S. at 653). A court cannot grant any effectual

relief where a plaintiff or petitioner already has received all of the relief sought. See Von Staich v. Hamlet, 2007 WL 3001726 *1 (9th Cir.

Contrary to Respondent's assertion that Petitioner failed to allege a cognizable claim, Petitioner's challenge to the Bureau's decision concerning the location of his confinement is cognizable on habeas review. A section 2241 petition is proper where, as here, a federal prisoner is challenging the manner, location, or conditions under which his or her sentence is being executed. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1990); see also Rodriguez v. Smith, 2008 WL 4070264 (9th Cir. Sept. 4, 2008) (affirming district court's grant of habeas relief on similar claim). 6

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Oct. 16, 2007) (unpublished);5 see Coleman v. California Board of Prison Terms, 228 Fed. App'x. 673 (9th Cir. Apr. 6, 2007) (unpublished) (implementation of desired parole procedure moots controversy regarding whether such procedure previously was withheld illegally); DeMille v. Belshe, 1995 WL 23636 (N.D. Cal. Jan. 12, 1995) (administrative promulgation of desired procedures moots controversy concerning the alleged legal necessity of such procedures).

II.

Petitioner's Challenge to the Validity of 28 C.F.R. Section 570.21 is Moot.

Petitioner asserts that 28 C.F.R. section 570.21 is invalid as inconsistent with 18 U.S.C. section 3621(b).6
5

Petitioner has asked

The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a).
6

Section 3621 of Title 18 provides in pertinent part:

(b) Place of imprisonment. The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering-(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence-(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate;[] and (5) any pertinent policy statement issued by the Sentencing (continued...) 7

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the Court to declare that section 570.21 is an improper exercise of the Bureau's rulemaking authority (Attachment to Petition).

In Rodriguez v. Smith, supra, 2008 WL 4070264, the Ninth Circuit recently declared that section 570.21 is invalid as inconsistent with 18 U.S.C. section 3621(b). In holding that the Bureau of Prison's

categorical exercise of discretion under 28 C.F.R. sections 570.20 and 570.21 to exclude prisoners from CCC placement with more than 10 percent of their sentences remaining violates Congressional intent expressed in 18 U.S.C. section 3621(b), the Rodriguez Court joined the majority of circuit courts to address the issue. Rodriguez v. Smith,

2008 WL 4070264 at *3-*6; see Wedelstedt v. Wiley, 477 F.3d at 1162, 1167 (finding "regulations contradict Congress' clear intent that all inmate placement and transfer decisions be made individually and with regard to the five factors enumerated in 18 U.S.C. § 3621(b)"); Levine v. Apker, 455 F.3d 71, 87 (2d Cir. 2006) (finding that regulations are an "improper exercise" of the Bureau's rulemaking authority because they "sort[] prisoners' eligibility for one of the institutions on the `available penal or correctional facility list' only according to the portion of time served," which "unlawfully excised [section 3621(b)'s] parameters from the statute"); Fults v. Sanders, 442 F.3d 1088, 1092 (8th Cir. 2006) (finding regulations improperly "removed the

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(...continued) Commission pursuant to section 994(a)(2) of title 28.

. . . The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another. 18 U.S.C. § 3621(b) (emphasis added). 8

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opportunity for the Bureau to exercise discretion for all inmates not serving the last ten percent of their sentences"); Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 240, 244 (3d Cir. 2005) (opining that, while the issue is "far from clear" and courts have been divided, the regulations are unlawful because they "do not allow the [Bureau] to consider the nature and circumstances of an inmate's offense, his or her history or pertinent characteristics, or most importantly, any statement by the sentencing court concerning a placement recommendation and the purposes for the sentence"); but see Muniz v. Sabol, 517 F.3d 29, 31 (1st Cir. 2008), cert. denied, 2008 WL 2273253 (U.S. Oct. 6, 2008) (holding that the Bureau's regulations constituted an appropriate exercise of discretion and should be afforded deference and noting, "While we are loath to create a circuit split, we respectfully side with the dissenters [in the other circuits]."). Accordingly, to the extent Petitioner seeks a judicial

declaration that section 570.21 is invalid, the request is moot; the Ninth Circuit authoritatively has so declared. Rodriguez. This Court must follow

Zuniga v. United Can Co., 812 F.2d 443, 450 (9th Cir.

1987) ("[D]istrict Courts are, of course, bound by the law of their own circuit.").

III. Petitioner's Challenge to the Bureau's Application of 28 C.F.R. Section 570.21 to Deny Petitioner Immediate Individualized Consideration for CCC Placement Also is Moot.

To the extent Petitioner requests that the Court require the Bureau immediately to consider Petitioner for placement in a CCC in accordance with 18 U.S.C. section 3621(b), such request is also moot. 9

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As discussed below, under the prompting of recent legislation, the Bureau already has given Petitioner individualized consideration for CCC placement (Nastro Decl. at ¶ 10).

On April 9, 2008 ­ shortly after the filing of the Petition ­ the President signed into law the "Second Chance Act of 2007," Pub. L. 110-199, 122 Stat. 657 (2007) ("the Act"). The Act requires the See 18 U.S.C. §

Bureau to modify section 570.21 of the regulations.

3624(c)(6) (as amended) (requiring the issuance of regulations to ensure that placement in a CCC is conducted in a manner consistent with 18 U.S.C. § 3621(b) and determined on an individual basis); House Report 110-140, 2007 WL 1378789 at *46 (May 9, 2007) (indicating that the amendment to section 3624 will require modification of section 570.21 of the regulations). The Act's amendment to section 3624 also

lengthens from 6 to 12 months the maximum portion of the sentence that may demarcate the "reasonable opportunity to adjust to and prepare for the prisoner's reentry into the community." (as amended). 18 U.S.C. § 3624(c)(1)

On April 14, 2008, the Bureau issued a memorandum advising how the Bureau will now make pre-release CCC placement decisions in light of the Act (Nastro Decl., Exhibit D). The memorandum provides that 28

C.F.R. section 570.21 is no longer applicable and must no longer be followed in making placement decisions (Id. at p. 3). The Bureau must

now review inmates for pre-release placements 17 to 19 months before the projected release date (Id.). The Bureau must also assess inmates

individually, considering the pre-release factors set out in 18 U.S.C. section 3621(b) (Nastro Decl., Exhibit D, p. 3). 10 To ensure each

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placement is "of sufficient duration to provide the greatest likelihood of successful reintegration into the community," the Bureau must review each case with the understanding that an inmate is eligible for a maximum of twelve months CCC placement (Id. citing 18 U.S.C. § 3624(c)(6) (as amended)).

On July 29, 2008, Petitioner received individualized consideration for CCC placement in accordance with the Act and the Bureau's new policy memorandum (Nastro Decl., ¶ 10). Based on this

consideration, the Bureau determined that Petitioner will receive a 180-day CCC placement (i.e., beginning on or about February 22, 2009 (Id.).

Thus, although Petitioner may not receive as much time in a CCC as he desires, Petitioner has already received the only relief this Court properly could order, i.e., individualized consideration for CCC placement in accordance with sections 3621(b) and 3624(c) (and notwithstanding the limitations of 28 C.F.R. section 570.21(a)).7 Accordingly, the Petition is moot.
7

See, e.g., Sparks v. Smith, 2008

The Bureau is solely responsible for designating the place of confinement. 18 U.S.C. § 3621(b); see also United States v. Dragna, 746 F.2d 457, 458 (9th Cir. 1984), cert. denied, 469 U.S. 1211 (1985) (district court does not have jurisdiction to decide the location of a defendant's incarceration; that decision rests solely with the executive branch); United States v. Charry Cubillos, 91 F.3d 1342, 1343 n.1 (9th Cir. 1996) (same); Arred v. Phillips, 2008 WL 4219074 *3, n.2 (N.D. W.Va. Sept. 15, 2008) (noting that the court lacks authority to order the Bureau to afford a longer period of CCC placement once a decision is made). Where a court finds the Bureau's policies are unlawful, the resulting relief is not an order for transfer, only an order for the individualized consideration of transfer, which Petitioner already has received. See id. 11

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WL 2509435 *4-*5 (E.D. Cal. June 23, 2008), adopted, 2008 WL 4177736 (E.D. Cal. Sept. 8, 2008) (challenge to Bureau's prior placement decision moot where the Bureau already had conducted a second assessment in accordance with the Second Chance Act, providing all the relief the Court could provide); Safa v. Phillips, 2008 WL 2275409 (N.D. W.Va. June 2, 2008) (Bureau's individualized consideration of the petitioner's request for transfer to a CCC mooted the petitioner's challenge to section 570.21, even though the Bureau ultimately refused to transfer the petitioner); Chaves v. Wrigley, 2007 WL 4322785 (E.D. Cal. Dec. 7, 2007) (same issue moot where the petitioner was given individualized consideration, although court failed to note the outcome of the consideration); Carroll v. Smith, 2007 WL 2900221 (E.D. Cal. Oct. 4, 2007), adopted, 2007 WL 3293404 (E.D. Cal. Nov. 5, 2007) (same issue moot where individualized consideration resulted in a finding that the petitioner would be placed in a CCC for only 30-40 days).

Because the Bureau's individualized consideration of Petitioner's request for placement in a CCC has given Petitioner all the relief to which he conceivably could be entitled at this time, the Petition should be dismissed as moot.8

IV.

Any Challenge Petitioner May Have to the Bureau's Post-Second Chance Act Placement Decision is Unexhausted.

This dismissal should be without prejudice to any rights or remedies Petitioner may have under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Federal Tort Claims Act, or any other federal law potentially authorizing the recovery of damages. 12

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In his Traverse, Petitioner claims that the Bureau now categorically denies all inmates the benefit of CCC placement for twelve months, notwithstanding the announced change in Bureau policy following the Act (Traverse, p. 2). Petitioner claims, without

evidence, that the Bureau has not placed any inmate in a CCC for as long as twelve months (Id. (asserting that the Bureau's new placement decisions have "created a new issue" for the Court to resolve)). Petitioner requests that the Court order the Bureau to follow the Congressional intent presumably behind 18 U.S.C. section 3624(c). the reasons set forth below, Petitioner's new claim should be dismissed for failure to exhaust administrative remedies available under 28 C.F.R. section 542.10 et seq. For

Although exhaustion is not jurisdictional, petitioners may be required, as a prudential matter, to exhaust available administrative remedies before seeking relief under 28 U.S.C. section 2241. See

Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004); Castro-Cortez v. Immigration and Naturalization Serv., 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds, Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) ("[S]ection [2241] does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus. However, we require, as a prudential matter, that

habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241." (citation and footnote omitted)); see also Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds, Reno v. Koray, 515 U.S. 50 (1995) (discussing same).

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Courts have discretion to waive prudential exhaustion requirements where "administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void." Laing, 370 F.3d at 1000 (quoting S.E.C.

v. G.C. George Sec., Inc., 637 F.2d 685, 688 (9th Cir. 1981) (internal quotations omitted). A "key consideration" in exercising such

discretion is whether "relaxation of the requirement would encourage the deliberate bypass of the administrative scheme." Laing, 370 F.3d

at 1000 (quoting Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990) (internal quotations omitted). Where administrative exhaustion

may allow an agency an opportunity to remedy its mistakes before being haled into court, exhaustion is appropriate. 503 U.S. 140, 145 (1992). See McCarthy v. Madigan,

However, where the agency has predetermined

an issue before it, exhaustion would be futile and should be excused. Id. at 148.

Here, Petitioner does not claim to have exhausted his administrative remedies concerning the Bureau's most recent placement decision for Petitioner under the Bureau's new policies. Petitioner maintains there is no need to file a claim for administrative relief because, even under the new policies, the Bureau has negatively predetermined the issue concerning placements of up to twelve months, so exhaustion allegedly would be futile in all cases. See Traverse, p. 2. Rather,

Petitioner assumes what he wishes to prove, and does so based on pure speculation. This Court should not assume that the Bureau 14

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falsely has vowed to give prisoners individualized consideration for up to twelve months of CCC placement and then merely has pretended to do so while actually continuing to apply the Bureau's now discredited six-month categorical limitation. See Withrow v. Larkin, 421 U.S. 35,

47 (1975) (there exists "a presumption of honesty and integrity in those serving as [administrative] adjudicators").

If Petitioner pursues his new claim administratively, the Bureau could remedy any alleged mistakes in implementing its new procedures. At a minimum, administrative exhaustion would further develop the record concerning the Bureau's most recent decision regarding Petitioner and the existence or nonexistence of the six-month policy Petitioner contends is still in force. There is no proof in the

record that the Bureau would fail honestly to respond to Petitioner's pursuance of administrative remedies. Under the circumstances, this

Court should not excuse the exhaustion requirement with respect to Petitioner's new claim.9 Cf. Miller v. Whitehead, 527 F.3d 752, 757-

58 (8th Cir. 2008) (no cause for relief where petitioner did not provide any evidence that the warden failed to consider relevant statutory factors or acted other than in good faith in reaching CCC placement decision).

RECOMMENDATION

As a practical matter, because Petitioner is now within eleven months of release and only five months from being placed in a CCC, his most timely remedy may come from further administrative review. If, after exhaustion, Petitioner remains dissatisfied, the Court could entertain another habeas petition on an accelerated basis, if appropriate. 15

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For all the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.

DATED:

November 14, 2008.

______________/S/__________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

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NOTICE Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the

Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

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 IT IS ORDERED that Judgment be entered denying and dismissing the Petition without prejudice. /// /// /// /// Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves XAVIER MONIQUE FIELDS, ) ) Petitioner, ) ) v. ) ) JOSEPH WOODRING, Warden, ) ) Respondent. ) ) ______________________________) NO. ED CV 08-426-VAP(E) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

and adopts the Magistrate Judge's Report and Recommendation.

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IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein by United States mail on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: ____________________________, 2008.

__________________________________ VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE

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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 __________________________________ VIRGINA A. PHILLIPS UNITED STATES DISTRICT JUDGE DATED: _________________________, 2008. IT IS ADJUDGED that the Petition is denied and dismissed without prejudice. Pursuant to the Order Adopting Findings, Conclusions and Recommendations of United States Magistrate Judge, XAVIER MONIQUE FIELDS, ) ) Petitioner, ) ) v. ) ) JOSEPH WOODRING, Warden, ) ) Respondent. ) ___________________________________) NO. ED CV 08-426-VAP(E) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

JUDGMENT