Gallegos-Soto v. Adler

Filing 13

FINDINGS and RECOMMENDATIONS recommending that 10 Respondent's Motion to Dismiss be GRANTED and the Petition be DISMISSED With Prejudice re 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Michael J. Seng on 7/8/2011. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALEJANDRO GALLEGOS-SOTO,
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Petitioner,
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v.
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NEIL H. ADLER, Warden,
Respondent.

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1:10-cv-01037 AWI MJS HC
FINDINGS AND RECOMMENDATION
REGARDING RESPONDENT’S MOTION
TO DISMISS
(Doc. 10)

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I.

INTRODUCTION

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Plaintiff is a federal prisoner proceeding with a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2241. Petitioner is confined at Taft Correctional Institution in Taft

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California. He has paid the requisite $5.00 filing fee. The matter has been referred to the

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending

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before the Court is Respondent's Motion to Dismiss filed on November 12, 2010. (Mot. To

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Dismiss, ECF No. 10.)

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The instant Petition for Writ of Habeas Corpus was filed on June 9, 2010. (Pet., ECF

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No. 1.) The petition alleges that Petitioner has been improperly denied forty eight (48) days

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of good time credits that he earned based on participation in educational programming. (Id.

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at 3.) Specifically, Petitioner claims that the Bureau of Prisons ("BOP") has improperly

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calculated his good conduct time credit during the period between February 24, 2003 and

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January 16, 2008. (Id.) In response, Respondent filed the instant Motion to Dismiss,

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contending that Petitioner had failed to state a claim upon which habeas relief could be

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granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. to Dismiss.) On December

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13, 2010, Petitioner filed a Traverse to the Motion to Dismiss. (Traverse, ECF No. 12.)

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II.

JURISDICTION

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A.

Subject Matter Jurisdiction

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Relief by way of a writ of habeas corpus extends to a prisoner in custody under the

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authority of the United States who shows that the custody violates the Constitution, laws, or

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treaties of the United States. 28 U.S.C. § 2241(c)(3). Although a federal prisoner who

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challenges the validity or constitutionality of his conviction must file a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2255, a federal prisoner challenging the manner, location, or

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conditions of the execution of a sentence must bring a petition for writ of habeas corpus under

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28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000).

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Petitioner alleges that his good time credits have been improperly calculated resulting

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in a loss of such credits. (Pet. at 3.) If a constitutional violation has resulted in the loss of time

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credits, it affects the duration of a sentence, and the violation may be remedied by way of a

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petition for writ of habeas corpus. Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990).

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Accordingly, the Court concludes that it has subject matter jurisdiction over the petition.

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B.

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Title 28 U.S.C. § 2241(a) provides that writs of habeas corpus may be granted by the

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district courts "within their respective jurisdictions." A writ of habeas corpus operates not upon

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the prisoner, but upon the prisoner's custodian. Braden v. 30th Judicial Circuit Court of

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Kentucky, 410 U.S. 484, 494-495 (1973). A petitioner filing a petition for writ of habeas corpus

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under § 2241 must file the petition in the judicial district of the Petitioner's custodian. Brown

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v. United States, 610 F.2d 672, 677 (9th Cir. 1990). The warden of the penitentiary where a

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prisoner is confined constitutes the custodian who must be named in the petition, and the

Jurisdiction over the Person

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petition must be filed in the district of confinement. Id.; Rumsfeld v. Padilla, 542 U.S. 426,

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446-47 (2004). It is sufficient if the custodian is in the territorial jurisdiction of the court at the

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time the petition is filed; transfer of the petitioner thereafter does not defeat personal

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jurisdiction that has once been properly established. Ahrens v. Clark, 335 U.S. 188, 193, 68

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S. Ct. 1443, 92 L. Ed. 1898 (1948), overruled on other grounds in Braden, 410 U.S. at 493,

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citing Mitsuye Endo, 323 U.S. 283, 305 (1944); Francis v. Rison, 894 F.2d 353, 354 (9th Cir.

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1990). A failure to name and serve the custodian deprives the Court of personal jurisdiction.

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Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).

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Here, at all pertinent times, Petitioner was incarcerated at the Taft Correctional

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Institution (TCI) located within the Eastern District of California. Petitioner named Neil H. Adler,

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the Warden of TCI, as Respondent.
Accordingly, the Court concludes that it has personal jurisdiction over the custodian.

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III.

PROCEDURAL GROUNDS FOR MOTION TO DISMISS

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Respondent has filed a motion to dismiss the petition for failure to state a claim upon

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which relief can be granted pursuant to Fed. R. Civ. Proc. 12(b)(6). (Mot. to Dismiss, ECF No.

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10.) Along with the motion, Respondent has submitted various documents and a signed

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declaration in support of the motion. (Decl. of Lorena Matei, ECF No. 11.) Reading

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Respondent's arguments and submitted exhibits, it is clear that Respondent is, in essence,

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arguing the merits of Petitioner's claims, not a procedural deficiency such as lack of

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exhaustion or federal jurisdiction.

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it "plainly appears from the petition and any attached exhibits that the petitioner is

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not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254

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Cases.1 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an

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answer if the motion attacks the pleadings for failing to exhaust state remedies or being in

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violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th

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The Rules Governing Section 2254 Cases m ay be applied to petitions for writ of habeas corpus other
than those brought under § 2254 at the Court's discretion. See, Rule 1 of the Rules Governing Section 2254
Cases; Fed. R. Civ. P 81(a)(4).

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Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state

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remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural

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grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp.

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1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss

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after the Court orders a response, and the Court should use Rule 4 standards to review the

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motion. See Hillery, 533 F. Supp. at 1194 & n. 12.

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As discussed above, the Rules Governing Section 2254 Cases do not expressly provide

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for motion practice; rather, such motion practice must be inferred from the structure of the

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rules themselves. Hillery, 533 F.Supp. at 1195. For example, Rule 12 provides as follows:

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The Federal Rules of Civil Procedure, to the extent that they are not inconsistent
with any statutory provisions or these rules, may be applied to a proceeding
under these rules.

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Rule 12 of the Rules Governing Section 2254 Cases. Because of the peculiar and unique

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nature of habeas proceedings, as a general rule, neither motions to dismiss under Federal

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Rule of Civil Procedure 12(b)(6)

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particularly appropriate. Given the nature of a habeas corpus petition, Anderson v. Butler, 886

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F.2d 111, 113 (5th Cir. 1989) (modern habeas corpus procedure has the same function as an

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ordinary appeal); O'Neal v. McAninch, 513 U.S. 432, 442 (1995) (federal court's function in

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habeas corpus proceedings is to "review errors in state criminal trials" (emphasis omitted)),

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motions for summary judgment are unnecessary because petitions may be decided

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immediately by the Court following submission of the pleadings provided no material issues

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of fact exist.

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nor summary judgment motions under Rule 56 are

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Similarly, a Rule 12(b)(6) motion attacking the sufficiency of the pleading in the petition

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does not comfortably fit within the habeas landscape either. As mentioned, the district court

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is already tasked with the responsibility to initially screen the petition for sufficiency pursuant

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to Rule 4 of the Rules Governing Section 2254 cases. Here, the Court's order requiring

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Respondent to file a response was issued only after the Court had undertaken its Rule 4

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obligation. Thus, at that point, the Court had, by implication, already found the petition's

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pleadings sufficient to proceed. Premising a motion to dismiss on Rule 12(b)(6), as

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Respondent has done, is therefore redundant in that it essentially requests that the Court to

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conduct a pleading examination already completed.

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Thus, although procedurally inappropriate, the Court is of the opinion that denying

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Respondent's motion to dismiss solely on narrow procedural grounds and then requiring an

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answer that would, in all likelihood, raise the same issue again based on the same evidence,

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would be an inefficient use of the parties' time and the Court's resources. Instead, the Court

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will exercise ist inherent power under the Rules Governing Section 2254 Cases to construe

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Respondent's motion as an answer on the merits. So construing the filing, the Court would

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then be in a position to rule on the merits of the petition without the need for further

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development of the record or additional briefing.

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Such an approach is entirely consistent with the Rules Governing Section 2254 Cases.

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Historically, habeas practice provided only two dispositions for petitions: summary dismissal

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or a full hearing. Hillery, 533 F.Supp. at 1196. However, the drafters of the present Rules

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Governing Section 2254 cases believed that, in some instances, an intermediate process,

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through the device of an expanded record under Rule 7 might be advantageous. Id. "The

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purpose [of Rule 7] is to enable the judge to dispose of some habeas petitions not dismissed

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on the pleadings, without the time and expense required for an evidentiary

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hearing…Authorizing expansion of the record will, hopefully, eliminate some unnecessary

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hearings." Advisory Committee Note to Rule 7.
In conclusion, the Court shall consider the present motion as an answer, and determine

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the rights of the parties accordingly.

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IV.

ANALYSIS OF CLAIM

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A.

Factual Background

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Petitioner is a federal prisoner incarnated at Taft Correctional Institution.2 While

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incarcerated, Petitioner participated in a functional literacy program to assist Petitioner in

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obtaining a General Educational Development (“GED”) certificate. By February 24, 2003, he

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had accrued 262 instructional hours in the program. (Matei Decl., ex. A.)

However,

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Neither Petitioner nor Respondent provided inform ation regarding Petitioner’s underlying conviction.

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Respondent asserts, and Petitioner does not refute, that he voluntarily withdrew from the

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program. (Mot. to Dismiss at 2.) From June 6, 2003, until January 16, 2008, his educational

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information records list his GED progress as “unsatisfactory”. (Matei Decl., ex. A.) On January

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16, 2008, Petitioner’s progress status returned to “satisfactory” and he completed his GED as

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of January 14, 2009. (Id.) However, as a consequence of the "unsatisfactory" designation,

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Petitioner was unable to earn the maximum good conduct time available through BOP

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programs of 54 days under 18 U.S.C. § 3624(b). Instead, he received 42 days good conduct

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time because he did not qualify to be considered an inmate who “has earned, or is making

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satisfactory progress toward earning, a high school diploma or an equivalent degree.” 18

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U.S.C. § 3624(b)(1). Petitioner asserts that he is entitled to receive twelve additional days of

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good credit time for each of the four years that his progress was listed as unsatisfactory, i.e.,

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he claims entitlement to an additional 48 days of good conduct time.

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Petitioner filed an administrative grievance with the BOP on May 26, 2009. (Pet., ex.

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A.) The request was rejected and the counselor stated that Petitioner was not entitled to

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retroactive application of good time credits for the time prior to earning a GED. Petitioner's

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subsequent appeals to the BOP's Regional Office and National Office were rejected on the

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same ground. Petitioner then filed the present habeas petition, seeking the restoration of the

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48 days of good conduct time he lost as a result of this determination.

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B.

Discussion

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Title 18, Section 3624(f), of the United States Code, directs the BOP to create a

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"functional literacy" program "for all mentally capable inmates who are not functionally literate."

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Each eligible inmate is required to participate in the program for a mandatory period of time

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to be determined by the BOP, and the BOP is required to offer "appropriate incentives which

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lead to successful completion of the programs." 18 U.S.C. § 3624(f). Pursuant to these

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statutory mandates, the BOP requires any inmate without a high school diploma or GED to

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attend instructional courses until such time as he completes 240 hours of attendance or

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obtains a GED, whichever occurs first. 28 C.F.R. § 544.70. Once the inmate has reached 240

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hours, the BOP offers additional incentives to encourage completion of the course under 28

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C.F.R. § 523.20(c)(1), which awards 54 days of good conduct time credit if the inmate "has

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earned or is making satisfactory progress toward earning a GED credential." See also 18

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U.S.C. § 3624(b)(1) (providing that "[i]n awarding credit under this section, the Bureau shall

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consider whether the prisoner, during the relevant period, has earned, or is making satisfactory

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progress toward earning, a high school diploma or an equivalent degree."). If the inmate

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chooses not to pursue a GED beyond the mandatory 240 hours, 28 C.F.R. § 523.20(c)(2)

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provides that the BOP shall award only 42 days good conduct time credit.

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Inmates who fit within one of the exceptions to mandatory participation set forth in 28

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C.F.R. § 544.71 are excused from participation and can still receive the full 54 days of credit.

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Exceptions exist for those who are temporarily unable to participate, such as for medical

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reasons or because of a temporary transfer, or those who are permanently exempted from

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participation due to a documented mental, emotional, or physical impairment which limits their

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ability to benefit from the program. 28 C.F.R. § 544.71(a)(4), (b). To qualify for the latter

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permanent exemption, a petitioner requires appropriate documentation. 28 C.F.R. § 544.71(b).

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Respondent determined that Petitioner was not entitled to all 54 days of good time

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credit for the period between February 24, 2003 and January 16, 2008 because he did not

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participate in educational programs during that time. Petitioner’s educational records do not

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show he fit within any exception to participation; his records show no testing by educational

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staff. (Matei Decl., ex. A.) The records did indicate that on February 24, 2003, Petitioner did

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not want a GED, and that his progress was poor. (Id.) Petitioner dropped all his educational

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courses on June 6, 2003. (Id.)

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Petitioner contends that once he completed the minimum of 240 educational hours at

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as required by 28 C.F.R. § 544.70, he was automatically excused from any further participation

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in the program, and entitled to 54 days of good time credit a year from that point forward. He

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directs the Court's attention to Snider v. Daniels, 445 F. Supp. 2d 1233 (D. Or. 2006) in

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support of his request for relief. In that case, the court found that the BOP acted arbitrarily and

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capriciously in denying the petitioner good time credits because he had already completed 240

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hours of functional literacy instruction. Snider, 445 F. Supp. 2d at 1235. Snider is

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distinguishable from the case at hand because the former appears to have involved a situation

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in which the BOP had refused to grant the petitioner any good time credits even though he had

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completed more than 240 hours of instructional time. See id. at 1235 (holding that the

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petitioner was "eligible for good time credits because he completed a single period of 240

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hours of functional literacy instruction in compliance with BOP's Program Statement."). That

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has not happened here. To the contrary, the BOP has readily provided Petitioner with the 42

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days of good time credit per year that he earned by completing 240 hours of instructional time.

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See Martin v. Hogsten, 2009 U.S. Dist. LEXIS 216, 12-13 (E.D. Ky. Jan. 5, 2009); Holman v.

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Cruz, 2008 U.S. Dist. LEXIS 115731, 13-14 (D. Minn. Oct. 23, 2008).

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Petitioner’s argument is contrary to the clear mandates and purpose of the functional

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literacy program and good time credits pursuant to 18 U.S.C. § 3624(b) and (f). As noted

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previously, Section 3624(f) directs the BOP to determine a mandatory period of time that each

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eligible inmate is required to attend the Literacy Program. Section 3624(f) directs the BOP to

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implement "appropriate incentives which lead to successful completion of such programs." 18

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U.S.C. § 3624(f)(2). Accordingly, the BOP determined that eligible inmates must attend the

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program for 240 hours or be subject to disciplinary sanctions, and if the inmate does not

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achieve his GED within the 240 hours, the BOP offers good time credits to encourage further

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participation.

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It is clear that an inmate cannot be subject to disciplinary sanctions if he refuses to

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participate beyond the mandatory 240 hours, but it is also clear the BOP can withhold good

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time credits if he refuses to continue to participate in the program. See 18 U.S.C. § 3624(b)(1)

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("In awarding credit under this section, the Bureau shall consider whether the prisoner, during

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the relevant period, has earned, or is making satisfactory progress toward earning, a high

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school diploma or an equivalent degree."). Pursuant to this discretionary authority, the BOP

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has promulgated regulations which provide that an inmate who refuses to participate beyond

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the 240 hours, and who has not yet received his GED, will only be awarded 42 of the possible

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54 good time credits. See 28 C.F.R. § 523.20.

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Petitioner refused to participate in the Literacy Program after February 24, 2003, and

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the BOP only awarded him 42 days credit under 28 C.F.R. § 523.20(c)(2). This determination

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is consistent with the statutory mandate of 18 U.S.C. § 3624(b) and the BOP's regulations

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promulgated at 28 C.F.R. § 523.20(c)(2). Accordingly, the Court finds that the BOP properly

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calculated Petitioner’s good time credits. Because Petitioner has not shown that the BOP

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acted arbitrarily and capriciously as it properly calculated his good time credits pursuant to 18

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U.S.C. § 3264(b) and 28 C.F.R. § 523.20, Petitioner has failed to establish grounds on which

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he is entitled to relief. Therefore, his petition should be denied.

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V.

For the reasons discussed herein, the Court RECOMMENDS that Respondent’s Motion

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RECOMMENDATION

to Dismiss be GRANTED and the petition be dismissed with prejudice.

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These findings and recommendations are submitted to the United States District Court

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule

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304 of the Local Rules of Practice for the United States District Court, Eastern District of

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California. Within fourteen (14) days after being served with a copy, any party may file written

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objections with the Court and serve a copy on all parties. Such a document should be

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captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the

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objections shall be served and filed within seven (7) days (plus three days if served by mail)

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after service of the objections. The Court will then review the Magistrate Judge's ruling

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pursuant to 28 U.S.C. § 636 (b)(1)(c). The parties are advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
92b0h

July 8, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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