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)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
ALEKSANDER GORBATENKO,
12
Petitioner,
13
14
No. 2:16-cv-0537 DB P
v.
ORDER
SWAIN, et al.,
15
Respondents.
16
17
Petitioner is a federal prisoner proceeding pro se with a petition for a writ of habeas
18
corpus under 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to
19
28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition,
20
which was filed on March 14, 2016. For the reasons set forth below, this court will dismiss the
21
petition and provide petitioner an opportunity to amend the petition.
22
BACKGROUND
23
Petitioner initiated this action in 2016 by filing a petition for a writ of habeas corpus
24
pursuant to 28 U.S.C. § 2241. (ECF No. 1.) Petitioner challenges his conditions of confinement,
25
alleging that correctional officers at FCI Herlong retaliated against petitioner and unnecessarily
26
harassed him by planting narcotics in his shoe and issuing an incident report about the find.
27
////
28
////
1
1
2
SCREENING
I.
3
Legal Standards
The Rules Governing Section 2254 Cases in the United States District Courts (Habeas
4
Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas
5
Rule 1(b). Habeas Rule 4 requires the Court to make a preliminary review of each petition for
6
writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it plainly appears from
7
the petition and any attached exhibits that the petitioner is not entitled to relief in the district
8
court[.]” Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also
9
Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1)
10
specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground;
11
and 3) state the relief requested. Notice pleading is not sufficient; the petition must state facts
12
that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976
13
Adoption; O'Bremski, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7
14
(1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to
15
summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.
16
The Court may dismiss a petition for writ of habeas corpus either on its own motion under
17
Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition
18
has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see Herbst v.
19
Cook, 260 F.3d 1039, 1042–43 (9th Cir. 2001). A petition for habeas corpus should not be
20
dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded
21
were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
22
23
24
25
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
26
authority of the United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to
27
challenge the validity or constitutionality of his conviction must bring a petition for writ of habeas
28
corpus under 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of
2
1
that sentence’s execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241.
2
See, e.g., United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984); Brown v. United States,
3
610 F.2d 672, 677 (9th Cir. 1990). To receive relief under 28 U.S.C. § 2241, a petitioner in
4
federal custody must show that his sentence is being executed in an illegal, but not necessarily
5
unconstitutional, manner. See, e.g., Clark v. Floyd, 80 F.3d 371, 372, 374 (9th Cir. 1995)
6
(contending time spent in state custody should be credited toward federal custody); United States
7
v. Jalili, 925 F.2d 889, 893–94 (6th Cir. 1991) (asserting petitioner should be housed at a
8
community treatment center); Barden v. Keohane, 921 F.2d 476, 479 (3d Cir. 1991) (arguing
9
Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in
10
state custody); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990) (challenging content of
11
inaccurate pre-sentence report used to deny parole).
12
Petitioner asserts that a correctional officer entered his empty cell ahead of other
13
correctional officers who were to conduct a search. (ECF No. 1 at 7.) Petitioner alleges that the
14
first correctional officer planted drugs, which were found by the officers searching the cell. (Id.)
15
That evening, petitioner alleges that he was given an Incident Report documenting that narcotics
16
were found in his cell. (Id. at 7-8.) Petitioner labels this ground for habeas relief as “unnecessary
17
harassment and retaliation.” (Id. at 3, 7.) He claims that he “was set up” by a correctional officer
18
who had previously threatened him after earlier investigations by this officer resulted in no
19
violations. (Id. at 8.)
20
While petitioner states that he was placed in the Special Housing Unit (SHU) while the
21
matter was investigated (asserting that he received the Incident Report while he was in SHU), he
22
does not present any facts concerning the ultimate consequences stemming from the incident.
23
Specifically, petitioner does not allege any facts concerning disciplinary proceedings or punitive
24
measures entered against him by prison authorities.
25
Habeas corpus jurisdiction is available for a prisoner’s claims that he has been subjected
26
to greater restrictions of his liberty, such as disciplinary segregation, without due process of law.
27
Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989). Federal regulations create a liberty
28
interest in not being subjected to disciplinary segregation without due process of law. Id.; see
3
1
Hewitt v. Helms, 459 U.S. 460, 466–472 (1983) (holding that a state statutory framework and the
2
punitive nature of segregation created a liberty interest); Zimmerlee v. Keeney, 831 F.2d 183, 186
3
(9th Cir. 1987) (assuming that habeas petitioner had a protected liberty interest in not being
4
subject to disciplinary segregation).
5
Additionally, unlike § 2255, § 2241 does not contain language limiting jurisdiction under
6
§ 2241 to petitioners who are “claiming the right to be released.” 28 U.S.C. § 2255; compare
7
United States v. Thiele, 314 F.3d 399, 401 (9th Cir. 2002) (challenge to restitution order not
8
cognizable under § 2255 because petitioner was not claiming right to be released) with Montano–
9
Figueroa, 162 F.3d at 549 (challenge to timing and amount fine payments cognizable under §
10
2241's execution clause). Accordingly, § 2241 may be used to challenge the execution of a
11
prisoner's sentence, even where the prisoner does not seek release or to shorten the duration of his
12
confinement. See, e.g., Rodriguez v. Smith, 541 F.3d 1180, 1182 (9th Cir. 2008); Montez v.
13
McKinna, 208 F.3d 862, 865 (10th Cir. 2000) (entertaining petitioner's challenge to his transfer to
14
a private prison as a challenge to the execution of his sentence pursuant to § 2241); see also
15
Montano–Figueroa v. Crabtree, 162 F.3d 548, 549 (9th Cir. 1998) (reaching the merits of
16
petitioner's § 2241 challenge to the amount and timing of fine payments); United States v.
17
Lemoine, 546 F.3d 1042, 1046 (9th Cir. 2008) (entertaining § 2241 challenge to restitution
18
schedule); Giddings, 740 F.2d at 772 (“Review of the execution of a sentence may be had through
19
petition for writ of habeas corpus under 28 U.S.C. § 2241.”).
20
Here, petitioner’s claims concern conditions of confinement that do not necessarily bear a
21
relationship to the legality or duration of his confinement. As the undersigned noted above, the
22
petition describes an alleged incident where a correctional officer planted drugs in petitioner’s
23
cell; however, the petition does not describe the outcome of this incident. In particular, petitioner
24
does not allege that this incident resulted in greater restrictions of his liberty, such as disciplinary
25
segregation, without due process of law. See Bostic, 884 F.2d at 1269. In the prayer for relief,
26
the petition requests: 1) a full investigation into the prison administration’s purported violations
27
of civil rights; 2) all “good time” lost over a period of years be given back; and 3) a transfer to a
28
low security prison or one that is closer to his home. (ECF No. 1 at 6.)
4
While one of the requests for relief alludes to “good time” lost (presumably referring to
1
2
“good time credits” earned against a sentence), the petition does not allege that petitioner lost any
3
credits as a result of the incident in question. Additionally, this request for relief seeks “all the
4
‘good time’ lost over years/past” to be given back. (Id.) Thus, it is not clear that petitioner is
5
seeking to recover any credits lost from this incident; the phrasing for the request indicates that
6
petitioner is generally seeking good time credits that were earned and/or lost concerning unrelated
7
incidents or time periods.
8
9
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
10
challenge to the constitutionality of a sanction of disciplinary segregation and/or a claim that
11
disciplinary proceedings were the product of retaliation by prison staff are cognizable in a habeas
12
proceeding pursuant to § 2241. See Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989)
13
(habeas corpus is available pursuant to § 2241 for claims concerning denial of good time credits
14
or subjection to greater restrictions of liberty, such as disciplinary segregation, without due
15
process of law); Cardenas v. Adler, No. 1:09–cv–00831–AWI–JLT–HC, 2010 WL 2180378 (E.D.
16
Cal. May 28, 2010). Therefore, the court will grant petitioner an opportunity to amend the
17
petition to show a cognizable claim for habeas relief.
18
Until petitioner has filed a habeas petition in which he alleges at least one claim that is
19
cognizable under 28 U.S.C. § 2241, this court will not proceed to ordering that the petition be
20
served.
21
For the foregoing reasons, IT IS HEREBY ORDERED as follows:
22
1.
Petitioner’s petition (ECF No. 1) is dismissed with leave to amend.
23
2.
Within thirty days of the date of this order, petitioner shall file an amended
24
petition. The amended petition shall include the case number assigned to this action and shall be
25
titled “First Amended Petition.” Petitioner is warned that the court cannot refer to his prior
26
petition to make his First Amended Petition complete. Petitioner must include all claims for
27
habeas corpus relief in his first amended petition.
28
////
5
1
2
3
3.
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.
4.
Petitioner is warned that his failure to comply with this order may result in
4
dismissal of this action.
5
Dated: May 22, 2017
6
7
8
9
TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.HABEAS / gorb.0537.scrn
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?