Moreno v. Benov

Filing 5

FINDINGS and RECOMMENDATION Regarding 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Sandra M. Snyder on 8/26/11. Referred to Judge O'Neill. Thirty-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CESAR MORENO,

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1:11-cv-01380-LJO-SMS (HC)
Petitioner,

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FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

v.

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MICHAEL L. BENOV,

[Doc. 1]

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Respondent.
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/

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2241.
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BACKGROUND
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Petitioner is currently incarcerated at the Taft Correctional Institution in Taft, California,
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following a conviction in the United States District Court for the Northern District of Alabama
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for possession of 21 U.S.C. § 841. Petitioner filed the instant petition for writ of habeas corpus
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August 19, 2011, claiming that he was wrongly denied participation in the Residential Drug
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Addiction Program (RDAP) despite evidence that he was addicted to drugs.
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DISCUSSION
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I.

Subject Matter Jurisdiction

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Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary
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review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it
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plainly appears from the face of the petition . . . that the petition is not entitled to relief." Rule 4
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of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.

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1990). A federal court may only grant a petition for writ of habeas corpus if the petitioner can

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show that “he is in custody in violation of the Constitution. . . .” 28 U.S.C. § 2254(a). A habeas

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corpus petition is the correct method for a prisoner to challenge the “legality or duration” of his

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confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez,

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411 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing Section

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2254 Cases. This Court must determine as an initial matter whether it has subject matter

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jurisdiction to review the claims.

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The Ninth Circuit recently held that federal habeas corpus relief is not available to review

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the Bureau of Prison’s (BOP) discretionary determination for participation in the RDAP. See

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Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (“[A]ny substantive decision by the BOP

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to admit a particular prisoner into RDAP, or to grant or deny a sentence reduction for completion

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of the program, is not reviewable by the district court. ”).

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Petitioner’s sole challenge is to the BOP’s “individualized RDAP determination” which

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is not subject to review by way of a petition for writ of habeas corpus. Accordingly, the instant

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petition must be DISMISSED for lack of subject matter jurisdiction.

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RECOMMENDATION

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Based on the foregoing, it is HEREBY RECOMMENDED:

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The instant petition for writ of habeas corpus be DISMISSED; and

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The Clerk of Court be directed to terminate this action.

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This Findings and Recommendation is submitted to the assigned United States District

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Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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

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Within thirty (30) days after being served with a copy, any party may file written objections with

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the court and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served

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and filed within fourteen (14) days after service of the objections. The Court will then review the

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Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that
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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
icido3

August 26, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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