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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CESAR MORENO, 10 1:11-cv-01380-LJO-SMS (HC) Petitioner, 11 FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS v. 12 MICHAEL L. BENOV, [Doc. 1] 13 Respondent. 14 / 15 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2241. 17 BACKGROUND 18 Petitioner is currently incarcerated at the Taft Correctional Institution in Taft, California, 19 following a conviction in the United States District Court for the Northern District of Alabama 20 for possession of 21 U.S.C. § 841. Petitioner filed the instant petition for writ of habeas corpus 21 August 19, 2011, claiming that he was wrongly denied participation in the Residential Drug 22 Addiction Program (RDAP) despite evidence that he was addicted to drugs. 23 DISCUSSION 24 I. Subject Matter Jurisdiction 25 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 26 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 27 plainly appears from the face of the petition . . . that the petition is not entitled to relief." Rule 4 28 1 1 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 2 1990). A federal court may only grant a petition for writ of habeas corpus if the petitioner can 3 show that “he is in custody in violation of the Constitution. . . .” 28 U.S.C. § 2254(a). A habeas 4 corpus petition is the correct method for a prisoner to challenge the “legality or duration” of his 5 confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 6 411 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing Section 7 2254 Cases. This Court must determine as an initial matter whether it has subject matter 8 jurisdiction to review the claims. 9 The Ninth Circuit recently held that federal habeas corpus relief is not available to review 10 the Bureau of Prison’s (BOP) discretionary determination for participation in the RDAP. See 11 Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (“[A]ny substantive decision by the BOP 12 to admit a particular prisoner into RDAP, or to grant or deny a sentence reduction for completion 13 of the program, is not reviewable by the district court. ”). 14 Petitioner’s sole challenge is to the BOP’s “individualized RDAP determination” which 15 is not subject to review by way of a petition for writ of habeas corpus. Accordingly, the instant 16 petition must be DISMISSED for lack of subject matter jurisdiction. 17 RECOMMENDATION 18 Based on the foregoing, it is HEREBY RECOMMENDED: 19 1. The instant petition for writ of habeas corpus be DISMISSED; and 20 2. The Clerk of Court be directed to terminate this action. 21 This Findings and Recommendation is submitted to the assigned United States District 22 Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 23 Local Rules of Practice for the United States District Court, Eastern District of California. 24 Within thirty (30) days after being served with a copy, any party may file written objections with 25 the court and serve a copy on all parties. Such a document should be captioned “Objections to 26 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served 27 and filed within fourteen (14) days after service of the objections. The Court will then review the 28 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that 2 1 failure to file objections within the specified time may waive the right to appeal the District 2 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 7 8 IT IS SO ORDERED. 9 Dated: icido3 August 26, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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