Shino v. Rios

Filing 13

FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DISMISSED WITH PREJUDICE and the Clerk of Court be Directed to Enter Judgment, signed by Magistrate Judge Gary S. Austin on 6/29/2012. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDISON ODISHO SHINO,

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Petitioner,
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v.
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HECTOR RIOS, JR., Warden,
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Respondent.
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____________________________________)

1:12-CV-00222 LJO GSA HC
FINDINGS AND RECOMMENDATIONS
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

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Petitioner is a federal prisoner proceeding pro se with an application for writ of habeas
corpus pursuant to 28 U.S.C. § 2241.

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BACKGROUND

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Petitioner is currently in custody of the Bureau of Prisons at the United States Penitentiary

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located in Atwater, California, pursuant to a judgment of this Court, entered on August 3, 2006,

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following his conviction by jury trial of conspiracy to manufacture methamphetamine and attempt to

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possess pseudoephedrine. Petitioner was sentenced to serve a determinate prison term of 190

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months in federal prison.

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On February 16, 2012, Petitioner filed the instant petition for writ of habeas corpus in this

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Court. Petitioner alleges that his sentence was not properly credited for the time he spent in federal

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custody prior to the commencement of his sentence. On June 4, 2012, Respondent filed an answer to

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the petition. Petitioner filed a traverse on June 20, 2012.

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DISCUSSION
I. Jurisdiction

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A federal prisoner who wishes to challenge the validity or constitutionality of his conviction

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or sentence must do so by way of a motion to vacate, set aside, or correct the sentence under 28

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U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); Thompson v. Smith, 719

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F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997); Broussard v. Lippman,

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643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing court has jurisdiction.

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Tripati, 843 F.2d at 1163.

A prisoner may not collaterally attack a federal conviction or sentence by

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way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States,

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929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616

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F.2d 840, 842 (5th Cir.1980).

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In contrast, a federal prisoner challenging the manner, location, or conditions of that

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sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241.

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Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175,

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177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United

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States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3rd

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Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v. United

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States, 610 F.2d 672, 677 (9th Cir. 1990).

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In this case, Petitioner is challenging the execution of his sentence. Therefore, the Court has

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jurisdiction to hear the instant claims in a habeas petition pursuant to § 2241.

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II. Exhaustion

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A petitioner who is in federal custody and wishes to seek habeas relief pursuant to 28 U.S.C.

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§ 2241 must first exhaust available administrative and judicial remedies. Brown v. Rison, 895 F.2d

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533, 535 (9th Cir.1990); Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984). It is

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only after a petitioner has fully exhausted his administrative remedies that he becomes entitled to

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present his claims to the federal court. See United States v. Mathis, 689 F.2d 1364, 1365 (11th

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Cir.1982). In this case, Petitioner has exhausted his available remedies by pursuing all levels of

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administrative remedies.

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III. Review of Petition

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On November 20, 2003, Petitioner was arrested and taken into federal custody. He remained

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in federal custody until he was sentenced on August 3, 2006. He claims he has not been given credit

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for those 987 days he was in federal custody from arrest to sentence.

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Respondent has submitted sentence computation documentation and copies of court records

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showing Petitioner was sentenced to a term of 190 months on August 3, 2006. (See Resp’t’s

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Answer, Ex. 1.) A “Tentative Full Term” (TFT) date was calculated by projecting 190 months out.

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Based on the sentencing date of August 3, 2006, the TFT was calculated to be June 2, 2022. With no

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credit awarded against the sentence, this would be the full term Petitioner would have to serve.

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Respondent then awarded the prior custody credit of 987 days that is the subject of this

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petition. (See Resp’t’s Answer, Ex. 1.) The 987 days credit was deducted from the TFT to give an

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“Expiration Full Term” (EFT) date of September 19, 2019. (Id.)

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Finally, Respondent calculated Petitioner’s earned and projected “Good Conduct Time”

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(GCT). Based on the length of his sentence, Petitioner is eligible to earn a total of 721 days of GCT.

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(Id.) Respondent then deducted the 721 days of GCT to give a projected release date of

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September 28, 2017. (Id.)

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Accordingly, there is no question that Petitioner has been awarded the 987 days of pre-

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sentence credit. His claim to the contrary is clearly frivolous. Awarding additional credit would be

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impermissible double credit. See United States v. Wilson, 503 U.S. 329, 335 (1992).

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Respondent correctly argues that the case is moot since Petitioner has already been awarded

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the credit he now seeks. The Federal Court is “without power to decide questions that cannot affect

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the rights of the litigants before them.” North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 406

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(1971) per curiam, quoting Aetna Life Ins. Co. v. Hayworth, 300 U.S. 227, 240-241, 57 S.Ct. 461,

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463-464 (1937). Accordingly, the case should be dismissed with prejudice.

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RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas

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corpus be DISMISSED WITH PREJUDICE, and the Clerk of Court be DIRECTED to enter

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judgment.

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This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to the case pursuant to the provisions of 28 U.S.C. § 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. Within

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thirty (30) days after date of service of this Findings and Recommendation, any party may file

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written 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 Recommendation.” Replies to the

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Objections shall be served and filed within fourteen (14) calendar days after service of the

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Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636

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(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive

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the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
6i0kij

June 29, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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