Shanks v. Rios
Filing
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ORDER Granting Respondent's Motion to Dismiss 11 , signed by Magistrate Judge Michael J. Seng on 7/22/12. CASE CLOSED. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSEPH RAYMOND SHANKS,
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Petitioner,
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v.
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JEFF THOMAS, Warden,
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Respondent.
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________________________________)
1:11-cv-01389 MJS HC
ORDER GRANTING RESPONDENT'S
MOTION TO DISMISS
(Doc. 11)
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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2241. Both parties have consented to Magistrate Judge
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jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 4, 6.)
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Petitioner claims entitlement to a credit against his federal sentence for time served in
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a state correctional facility. Presently before the court is Respondent's February 12, 2012,
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motion to dismiss and Petitioner's March 5, 2012 response.
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I.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
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The instant petition does not challenge petitioner's conviction or sentence. Rather,
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petitioner contends that the Bureau of Prisons ("BOP") is executing petitioner's sentence in
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a way that violates federal law because the BOP refuses to give petitioner credit for time
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served on state charges.
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U.S. District Court
E. D. California
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On June 25, 2004, Petitioner was arrested by the Robinson Police Department, in
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Robinson, Texas, and charged with Possession of a Controlled Substance, Possession of
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Precursor Chemicals Necessary to Manufacture Methamphetamine, and Failure to Identify.
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On August 12, 2004, Petitioner was released on bail. (Decl. of Patrick Liotti in Support of Mot.
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To Dismiss (Lotti Decl.) ¶ 3, ex. 1.)
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On August 29, 2004, Petitioner was arrested by the Bruceville-Eddy Police Department,
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in Eddy, Texas, for Possession of a Controlled Substance (Id. ¶ 4, ex. 1.) On November 19,
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2004, Petitioner was sentenced in the 54th Judicial District Court of McLennan County, Texas,
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to a term of 4 years. All other charges were dismissed. (Id.) On March 21, 2005, Petitioner was
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brought into U.S. Marshal’s custody pursuant to a federal writ of habeas corpus ad
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prosequendum. (Id. ¶ 5, ex. 3.) On August 17, 2005, Petitioner was sentenced in the United
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States District Court for the Western District of Texas to a 120-month term of imprisonment
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for Conspiracy to Manufacture Methamphetamine, a Schedule II Narcotic Drug Controlled
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Substance in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1). This sentence was
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ordered to run concurrent with Petitioner's state sentence. (Id. ¶ 5, ex. 4.)
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On October 5, 2005, Petitioner was returned to the State of Texas. (Id. ¶ 7, ex. 3.) On
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May 19, 2006, Shanks was discharged from the Texas Department of Corrections,and the
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United States Marshal’s Service assumed custody to continue service of the federal sentence.
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(Id. ¶ 7, ex. 5.) In accordance with federal law and policy, the BOP prepared a sentence
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computation for the Petitioner, and his 120-month federal sentence commenced on August
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17, 2005. (Id. ¶ 8.) Since Petitioner was in state custody and received credit toward his state
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sentence, the amount of jail credit he could receive was limited. The BOP found Petitioner was
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eligible for jail credit from June 25, 2004, through August 12, 2004, and August 29, 2004,
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through November 18, 2004. However, he was not entitled to credit from November 19, 2004,
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until August 17, 2005. Based on this sentence computation, Petitioner is scheduled to be
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released from federal custody on August 14, 2014, via good conduct time. (Id. ¶ 8, ex. 6.)
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U.S. District Court
E. D. California
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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 asserts that the Bureau of Prisons improperly calculated his prior custody
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credits. "Habeas corpus jurisdiction is available under 28 U.S.C. section 2241 for a prisoner's
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claims that he has been denied good time credits without due process of law." Bostic v.
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Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (citing Preiser v. Rodriguez, 411 U.S. 475,
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487-88 (1973)). Accordingly, the Court concludes that it has subject matter jurisdiction over
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the petition.
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B.
Jurisdiction Over the Person
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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
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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); Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990). A
U.S. District Court
E. D. California
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failure to name and serve the custodian deprives the Court of personal jurisdiction. Johnson
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v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).
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Here, Petitioner was incarcerated at the United States Penitentiary, Atwater, at the time
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of filing. United States Penitentiary, Atwater is located within the Eastern District of California.
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Petitioner later notified the court of his transfer to United States Penitentiary, Lewisburg.
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Respondent, Jeff Thomas, as warden of United States Penitentiary, Lewisburg, is hereby
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substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of
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Civil Procedure.
Accordingly, the Court concludes that it has personal jurisdiction over the custodian as
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Petitioner was confined in the district at the time of filing.
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III.
ANALYSIS
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A.
Petitioner's Claim
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Petitioner seeks prior custody credit for time served in state custody prior to being
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transferred to the Federal Bureau of Prisons to commence his federal sentence. (Pet. at 6-8.)
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Specifically, Petitioner challenges the failure to credit the period in state custody from
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November 19, 2004 until August 17, 2005, the date upon which his federal sentence
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commenced. (Id.)
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B.
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Respondent argues that the petition should be denied on the ground that Petitioner's
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Respondent's Motion to Dismiss and Response
sentence was properly calculated and federal law prohibits the credit that petitioner seeks.
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C.
Prior Custody Credit
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The authority to compute a federal prisoner's sentence is delegated to the United States
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Attorney General, who exercises this authority through the U.S. Bureau of Prisons ("BOP").
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United States v. Wilson, 503 U.S. 329, 334-35 (1992). "Computing a federal sentence requires
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two separate determinations: first, when the sentence commences; and, second, to what
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extent the defendant in question may receive credit for any time already spent in custody."
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United States v. Smith, 812 F. Supp. 368, 370 (E.D. N.Y.1993). A federal sentence
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commences "on the date the defendant is received in custody . . . to commence service of
U.S. District Court
E. D. California
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sentence at the official detention facility at which the sentence is to be served." 18 U.S.C. §
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3585(a). In this regard, the Ninth Circuit has recently joined other circuits in noting
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that courts have interpreted § 3585(a) to mean that a federal sentence cannot
begin before the defendant has been sentenced in federal court. See United
States v. Gonzalez, 192 F.3d 350, 355 (2d Cir.1999) (holding that a district court
cannot "backdate" a federal sentence to the beginning of a state prison term on
related state charges.); United States v. Flores, 616 F.2d 840, 841 (5th Cir.
1980) ("[A] federal sentence cannot commence prior to the date it is
pronounced, even if made concurrent with a sentence already being served.")
Schleining v. Thomas, 642 F.3d 1242, 1244 (9th Cir. 2011).
The statute governing credits and the calculation of a federal term of imprisonment
provides as follows:
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A defendant shall be given credit toward the service of a term of imprisonment
for any time he has spent in official detention prior to the date the sentence
commences -
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(1) as a result of the offense for which the sentence is imposed; or
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(2) as a result of any other charge for which the defendant was arrested after the
commission of the offense for which the sentence was imposed;
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that has not been credited against another sentence.
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18 U.S.C. § 3585(b). In enacting this provision, "Congress made clear that a defendant could
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not receive a double credit for his detention time." Wilson, 503 U.S. at 337. The BOP's
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guidelines for computation of sentences are set forth in Program Statement 5880.28, which
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expressly incorporates the provisions of 18 U.S.C. § 3585(b). See Program Statement 5880.28
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at 1-14 ("18 U.S.C. § 3585(b) . . . is controlling for making time credit determinations for
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sentences imposed under the [Sentencing Reform Act]").
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Here, Petitioner's federal sentence commenced on August 17, 2005, when Petitioner
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was released to the custody of federal authorities to begin serving his federal sentence. 18
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U.S.C. § 3585(a). Petitioner received credit toward his state sentence for two periods of time
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while in state custody. First, Petitioner received credit to his federal sentence from June 25,
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2004 until August 12, 2004, when he was released on bail. (Liotti Decl. ¶ 9.) Second, Petitioner
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was awarded credit from August 29, 2004, through November 18, 2004 under Willis v. United
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States, 438 F.2d 923 (5th Cir. 1971). (Liotti Decl. ¶ 9, ex. 7.)
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U.S. District Court
E. D. California
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Petitioner only challenges the failure to receive credit from November 19, 2004, until
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August 17, 2005. As set forth above, 18 U.S.C. § 3585(b) precludes granting double credit for
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time served in federal or state custody. Wilson, 503 U.S. at 337. Here, petitioner was credited
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time against his Texas state court sentence prior to the commencement of his federal
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sentence. (Liotti Decl. ¶ 10.) Because petitioner was given time credit against his state
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sentence, he cannot receive the same credit against his federal sentence. 18 U.S.C. § 3585(b)
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(petitioner shall be given credit so long as his sentence "has not been credited against another
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sentence.")
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As discussed above, the state sentence was imposed before the federal sentence
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commenced. As such, the state's intent to award credits for the time spent in state custody
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prior to sentencing was known at the time Petitioner was sentenced in federal court, and the
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sentencing judge specifically indicated that Petitioner's federal sentence should run concurrent
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to his state sentence. Accordingly, the sentencing judge was aware of his state sentence, and
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knew that Petitioner would not be credited with the time spent in state custody credited
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towards his state sentence. Petitioner is not entitled to habeas relief.
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IV.
CERTIFICATE OF APPEALABILITY
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"The plain language of [28 U.S.C.] § 2253(c)(1) does not require a petitioner to obtain
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a [certificate of appealability] in order to appeal the denial of a § 2241 petition." Harrison v.
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Ollison, 519 F.3d 952, 958 (9th Cir. 2008). "Nor is there any other statutory basis for imposing
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a [certificate of appealability] requirement on legitimate § 2241 petitions. Although state
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prisoners proceeding under § 2241 must obtain a [certificate of appealability], see §
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2253(c)(1)(A), there is no parallel requirement for federal prisoners." Id.
Accordingly, because Petitioner is a federal prisoner bringing a legitimate § 2241
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petition, a certificate of appealability is not required.
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V.
ORDER
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Accordingly, IT IS HEREBY ORDERED:
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1) Respondent's motion to dismiss is GRANTED;
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2) The petition for writ of habeas corpus be DISMISSED; and
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E. D. California
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3) The Clerk of Court is DIRECTED to enter judgment and close the case.
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IT IS SO ORDERED.
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Dated:
ci4d6
July 22, 2012
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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