(HC) Luedtke v. Ciolli

Filing 9

FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be Dismissed re 1 Petition for Writ of Habeas Corpus ; ORDER DENYING 2 Motion to Appoint Counsel and ORDER DENYING 3 Motion for Order; referred to Judge Drozd; New Case No. 1:20-cv-1148 DAD-EPG (HC),signed by Magistrate Judge Erica P. Grosjean on 9/11/2020. (Objections to F&R due within 30-Day Deadline) (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES LUEDTKE, Case No. 1:20-cv-01148-EPG-HC Petitioner, 12 FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS v. 13 16 ORDER DENYING MOTION TO APPOINT COUNSEL, DENYING MOTION FOR ORDER REGARDING TRUST ACCOUNT STATEMENT, AND DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 17 (ECF Nos. 2, 3) 14 A. CIOLLI, Respondent. 15 18 19 Petitioner James Luedtke is a federal prisoner proceeding pro se with a petition for writ 20 of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner fails to state a cognizable federal 21 habeas corpus claim, and this Court does not have jurisdiction to entertain Petitioner’s request 22 for compassionate release. Accordingly, the undersigned recommends that the petition be 23 dismissed. 24 I. 25 BACKGROUND 26 Petitioner is currently confined at the United States Penitentiary in Atwater, California, 27 serving a sentence imposed by the United States District Court for the Eastern District of 28 /// 1 1 Wisconsin. (ECF No. 1 at 1).1 On August 17, 2020, Petitioner filed in the instant federal habeas 2 petition, wherein Petitioner requests compassionate release due to various physical and mental 3 maladies, including several chronic illnesses, carpal tunnel syndrome, cardiovascular disease, 4 arterioscierosis, and early onset Alzheimer’s disease. (ECF No. 1 at 2, 6–7). Petitioner requests 5 that the Court resentence Petitioner to time served and order Petitioner’s immediate release. 6 (ECF No. 1 at 7). 7 II. 8 DISCUSSION A. Preliminary Review of Petition 9 Rule 4 of the Rules Governing Section 2254 Cases2 requires preliminary review of a 10 11 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 12 to file a response, if it “plainly appears from the petition and any attached exhibits that the 13 petitioner is not entitled to relief in the district court . . . .” “Section 2241 provides that habeas corpus review is available to persons who are ‘in 14 15 custody in violation of the Constitution or laws or treaties of the United States.’” Gutierrez16 Chavez v. I.N.S., 298 F.3d 824, 827 (9th Cir. 2002), opinion amended on denial of reh’g, 337 17 F.3d 1023 (9th Cir. 2003) (quoting 28 U.S.C. § 2241). “Section 2241 explicitly says that one 18 who is in custody may file a habeas petition if he or she alleges that such custody violates the 19 constitution or federal law (or treaties).” Gutierrez-Chavez, 298 F.3d at 827. Here, Petitioner 20 does not allege that his custody is in violation of the Constitution, federal law, or treaties. Rather, 21 Petitioner requests compassionate release due to his medical conditions, which is not a matter of 22 unlawful or unconstitutional restraint. Accordingly, Petitioner fails to state a cognizable federal 23 habeas corpus claim, and the petition should be dismissed. See Figueroa v. Chapman, 347 F. 24 App’x 48, 50 (5th Cir. 2009) (holding that a § 2241 petition “may be granted if the inmate ‘is in 25 custody in violation of the Constitution or laws or treaties of the United States’” but that a 26 1 27 28 Page numbers refer to the ECF page numbers stamped at the top of the page. The Rules Governing Section 2254 Cases also apply to § 2241 habeas petitions. See Rule 1(b) of the Rules Governing Section 2254 Cases (“The district court may apply any or all of these rules to a habeas corpus petition not covered by” 28 U.S.C. § 2254.). 2 2 1 petitioner does not allege such a violation when the “application is for compassionate release due 2 to her medical needs”). 3 To the extent Petitioner is seeking compassionate release pursuant to 18 U.S.C. 4 § 3582(c)(1)(A), his request is before the wrong court. “Only the original sentencing court can 5 entertain such requests.” Bolden v. Ponce, No. 2:20-cv-03870-JFW-MAA, 2020 WL 2097751, at 6 *2 (C.D. Cal. May 1, 2020) (citing United States v. Raia, 954 F.3d 594, 595 (3d Cir. 2020) 7 (“Section 3582’s text requires those motions to be addressed to the sentencing court, a point 8 several Circuits have noted . . . .”); Rodriguez-Aguirre v. Hudgins, 739 F. App’x 489, 491 n.2 9 (10th Cir. 2018) (“[T]he district court lacked authority to entertain [petitioner’s] request for relief 10 under 18 U.S.C. § 3582(c)(1)(A) because he filed his request in the district in which he is 11 currently confined rather than in the district that imposed his sentence.”)). “Petitioner may not 12 short-circuit this requirement to file in the sentencing district by petitioning for such relief 13 pursuant to Section 2241 in the custodial district.” Bolden, 2020 WL 2097751, at *3. 14 B. Motion to Appoint Counsel 15 Petitioner moves the Court to appoint counsel given his lack of legal training and the 16 difficulty of obtaining evidence and independent diagnoses as an inmate proceeding pro se. (ECF 17 No. 2). There currently exists no absolute right to appointment of counsel in habeas proceedings. 18 See, e.g., Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Anderson v. Heinze, 258 F.2d 19 479, 481 (9th Cir. 1958). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes the appointment of 20 counsel at any stage of the proceeding for financially eligible persons if “the interests of justice 21 so require.” To determine whether to appoint counsel, the “court must evaluate the likelihood of 22 success on the merits as well as the ability of the petitioner to articulate his claims pro se in light 23 of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 24 1983). 25 Upon review of the petition, the motion, and Petitioner’s other submissions to the Court, 26 the Court finds that Petitioner appears to have a sufficient grasp of his claims and the legal issues 27 involved and that he is able to articulate those claims adequately. As it appears that the petition 28 should be dismissed for lack of jurisdiction, Petitioner does not demonstrate a likelihood of 3 1 success on the merits such that the interests of justice require the appointment of counsel at the 2 present time. Accordingly, the motion to appoint counsel is denied. 3 C. Motion for Order Regarding Trust Account Statement 4 Petitioner also moves the Court to order Respondent to send a copy of Petitioner’s 5 account statement to the Court. (ECF No. 3). Along with the motion, Petitioner submitted a 6 financial affidavit in order for the filing fee to be waived. (ECF No. 4). The Court previously 7 authorized Petitioner to proceed in forma pauperis on August 18, 2020. (ECF No. 7). 8 Accordingly, the Court denies as moot Petitioner’s motion for an order regarding his trust 9 account statement. 10 III. 11 RECOMMENDATION 12 Based on the foregoing, the undersigned HEREBY RECOMMENDS that the petition for 13 writ of habeas corpus be DISMISSED. 14 IV. 15 ORDER 16 Further, the Court HEREBY ORDERS that: 17 1. Petitioner’s motion to appoint counsel (ECF No. 2) is DENIED; 18 2. Petitioner’s motion for order regarding trust account statement (ECF No. 3) is DENIED 19 20 as MOOT; and 3. The Clerk of Court is DIRECTED to randomly ASSIGN a District Court Judge to the 21 present matter. 22 This Findings and Recommendation is submitted to the assigned United States District 23 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 24 Rules of Practice for the United States District Court, Eastern District of California. Within 25 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 26 written objections with the court and serve a copy on all parties. Such a document should be 27 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 28 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 4 1 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 2 time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 3 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 IT IS SO ORDERED. Dated: September 11, 2020 /s/ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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