Gorbatenko v. Swain et al

Filing 9

ORDER signed by Magistrate Judge Deborah Barnes on 5/22/17: Petitioner's petition 1 is dismissed with leave to amend. Within thirty days of the date of this order, petitioner shall file an amended petition. The Clerk of the Court is directed to send petitioner a copy of the form used in this district for pursuing a writ of habeas corpus under 28 U.S.C. § 2241. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALEKSANDER GORBATENKO,

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Petitioner,

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No. 2:16-cv-0537 DB P

v.

ORDER

SWAIN, et al.,

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Respondents.

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Petitioner is a federal prisoner proceeding pro se with a petition for a writ of habeas

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corpus under 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition,

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which was filed on March 14, 2016. For the reasons set forth below, this court will dismiss the

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petition and provide petitioner an opportunity to amend the petition.

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BACKGROUND

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Petitioner initiated this action in 2016 by filing a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2241. (ECF No. 1.) Petitioner challenges his conditions of confinement,

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alleging that correctional officers at FCI Herlong retaliated against petitioner and unnecessarily

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harassed him by planting narcotics in his shoe and issuing an incident report about the find.

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SCREENING
I.

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Legal Standards
The Rules Governing Section 2254 Cases in the United States District Courts (Habeas

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Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas

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Rule 1(b). Habeas Rule 4 requires the Court to make a preliminary review of each petition for

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writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it plainly appears from

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the petition and any attached exhibits that the petitioner is not entitled to relief in the district

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court[.]” Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also

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Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1)

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specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground;

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and 3) state the relief requested. Notice pleading is not sufficient; the petition must state facts

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that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976

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Adoption; O'Bremski, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7

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(1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to

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summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

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The Court may dismiss a petition for writ of habeas corpus either on its own motion under

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Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition

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has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see Herbst v.

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Cook, 260 F.3d 1039, 1042–43 (9th Cir. 2001). A petition for habeas corpus should not be

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dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded

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were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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II.

Discussion
A federal court may not entertain an action over which it has no jurisdiction. Hernandez

v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000).
Relief by way of a writ of habeas corpus extends to a person in custody under the

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authority of the United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to

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challenge the validity or constitutionality of his conviction must bring a petition for writ of habeas

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corpus under 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of
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that sentence’s execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241.

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See, e.g., United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984); Brown v. United States,

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610 F.2d 672, 677 (9th Cir. 1990). To receive relief under 28 U.S.C. § 2241, a petitioner in

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federal custody must show that his sentence is being executed in an illegal, but not necessarily

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unconstitutional, manner. See, e.g., Clark v. Floyd, 80 F.3d 371, 372, 374 (9th Cir. 1995)

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(contending time spent in state custody should be credited toward federal custody); United States

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v. Jalili, 925 F.2d 889, 893–94 (6th Cir. 1991) (asserting petitioner should be housed at a

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community treatment center); Barden v. Keohane, 921 F.2d 476, 479 (3d Cir. 1991) (arguing

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Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in

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state custody); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990) (challenging content of

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inaccurate pre-sentence report used to deny parole).

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Petitioner asserts that a correctional officer entered his empty cell ahead of other

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correctional officers who were to conduct a search. (ECF No. 1 at 7.) Petitioner alleges that the

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first correctional officer planted drugs, which were found by the officers searching the cell. (Id.)

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That evening, petitioner alleges that he was given an Incident Report documenting that narcotics

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were found in his cell. (Id. at 7-8.) Petitioner labels this ground for habeas relief as “unnecessary

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harassment and retaliation.” (Id. at 3, 7.) He claims that he “was set up” by a correctional officer

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who had previously threatened him after earlier investigations by this officer resulted in no

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violations. (Id. at 8.)

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While petitioner states that he was placed in the Special Housing Unit (SHU) while the

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matter was investigated (asserting that he received the Incident Report while he was in SHU), he

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does not present any facts concerning the ultimate consequences stemming from the incident.

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Specifically, petitioner does not allege any facts concerning disciplinary proceedings or punitive

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measures entered against him by prison authorities.

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Habeas corpus jurisdiction is available for a prisoner’s claims that he has been subjected

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to greater restrictions of his liberty, such as disciplinary segregation, without due process of law.

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Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989). Federal regulations create a liberty

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interest in not being subjected to disciplinary segregation without due process of law. Id.; see
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Hewitt v. Helms, 459 U.S. 460, 466–472 (1983) (holding that a state statutory framework and the

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punitive nature of segregation created a liberty interest); Zimmerlee v. Keeney, 831 F.2d 183, 186

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(9th Cir. 1987) (assuming that habeas petitioner had a protected liberty interest in not being

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subject to disciplinary segregation).

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Additionally, unlike § 2255, § 2241 does not contain language limiting jurisdiction under

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§ 2241 to petitioners who are “claiming the right to be released.” 28 U.S.C. § 2255; compare

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United States v. Thiele, 314 F.3d 399, 401 (9th Cir. 2002) (challenge to restitution order not

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cognizable under § 2255 because petitioner was not claiming right to be released) with Montano–

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Figueroa, 162 F.3d at 549 (challenge to timing and amount fine payments cognizable under §

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2241's execution clause). Accordingly, § 2241 may be used to challenge the execution of a

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prisoner's sentence, even where the prisoner does not seek release or to shorten the duration of his

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confinement. See, e.g., Rodriguez v. Smith, 541 F.3d 1180, 1182 (9th Cir. 2008); Montez v.

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McKinna, 208 F.3d 862, 865 (10th Cir. 2000) (entertaining petitioner's challenge to his transfer to

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a private prison as a challenge to the execution of his sentence pursuant to § 2241); see also

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Montano–Figueroa v. Crabtree, 162 F.3d 548, 549 (9th Cir. 1998) (reaching the merits of

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petitioner's § 2241 challenge to the amount and timing of fine payments); United States v.

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Lemoine, 546 F.3d 1042, 1046 (9th Cir. 2008) (entertaining § 2241 challenge to restitution

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schedule); Giddings, 740 F.2d at 772 (“Review of the execution of a sentence may be had through

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petition for writ of habeas corpus under 28 U.S.C. § 2241.”).

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Here, petitioner’s claims concern conditions of confinement that do not necessarily bear a

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relationship to the legality or duration of his confinement. As the undersigned noted above, the

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petition describes an alleged incident where a correctional officer planted drugs in petitioner’s

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cell; however, the petition does not describe the outcome of this incident. In particular, petitioner

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does not allege that this incident resulted in greater restrictions of his liberty, such as disciplinary

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segregation, without due process of law. See Bostic, 884 F.2d at 1269. In the prayer for relief,

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the petition requests: 1) a full investigation into the prison administration’s purported violations

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of civil rights; 2) all “good time” lost over a period of years be given back; and 3) a transfer to a

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low security prison or one that is closer to his home. (ECF No. 1 at 6.)
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While one of the requests for relief alludes to “good time” lost (presumably referring to

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“good time credits” earned against a sentence), the petition does not allege that petitioner lost any

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credits as a result of the incident in question. Additionally, this request for relief seeks “all the

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‘good time’ lost over years/past” to be given back. (Id.) Thus, it is not clear that petitioner is

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seeking to recover any credits lost from this incident; the phrasing for the request indicates that

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petitioner is generally seeking good time credits that were earned and/or lost concerning unrelated

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incidents or time periods.

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In light of the foregoing, the court lacks habeas corpus jurisdiction over the claim as
currently presented. Accordingly, the petition must be dismissed. However, a petitioner’s

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challenge to the constitutionality of a sanction of disciplinary segregation and/or a claim that

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disciplinary proceedings were the product of retaliation by prison staff are cognizable in a habeas

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proceeding pursuant to § 2241. See Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989)

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(habeas corpus is available pursuant to § 2241 for claims concerning denial of good time credits

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or subjection to greater restrictions of liberty, such as disciplinary segregation, without due

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process of law); Cardenas v. Adler, No. 1:09–cv–00831–AWI–JLT–HC, 2010 WL 2180378 (E.D.

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Cal. May 28, 2010). Therefore, the court will grant petitioner an opportunity to amend the

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petition to show a cognizable claim for habeas relief.

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Until petitioner has filed a habeas petition in which he alleges at least one claim that is

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cognizable under 28 U.S.C. § 2241, this court will not proceed to ordering that the petition be

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served.

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1.

Petitioner’s petition (ECF No. 1) is dismissed with leave to amend.

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2.

Within thirty days of the date of this order, petitioner shall file an amended

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petition. The amended petition shall include the case number assigned to this action and shall be

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titled “First Amended Petition.” Petitioner is warned that the court cannot refer to his prior

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petition to make his First Amended Petition complete. Petitioner must include all claims for

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habeas corpus relief in his first amended petition.

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The Clerk of the Court is directed to send petitioner a copy of the form used in this

district for pursuing a writ of habeas corpus under 28 U.S.C. § 2241.
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Petitioner is warned that his failure to comply with this order may result in

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dismissal of this action.

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Dated: May 22, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.HABEAS / gorb.0537.scrn

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