Wong v. Salazar

Filing 4

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/26/17 ordering the petition is dismissed without prejudice. The clerk of the court shall close the case. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE KEALOHOA WONG,

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No. 2:16-cv-2589 CKD P

Petitioner,
v.

ORDER

J. SALAZAR,
Respondent.

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Petitioner, a federal prisoner, has filed an application for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2241. (ECF No. 1.) Petitioner has paid the filing fee and has consented to

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Magistrate Judge jurisdiction to conduct all proceedings in this action. (ECF No. 3.)

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Under § 2241, habeas corpus relief is available to a federal prisoner if he can show he is

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“in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

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2241(c)(1) & (3). While a federal prisoner challenging the validity or constitutionality of a

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conviction must bring a petition for writ of habeas corpus under 28 U.S.C. § 2255, a petitioner

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challenging the manner, location, or conditions of the execution of that sentence is required to

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bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See Hernandez v. Campbell,

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204 F.3d 861, 864 (9th Cir. 2000). Under § 2241, a habeas corpus petition must be brought in the

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judicial district of the petitioner’s custodian. See id. at 865. Here, venue is proper in this district
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because petitioner is incarcerated at Federal Correctional Institution–Herlong.
Petitioner alleges that on September 22, 2016, a prison official refused to process his

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request for a money order to pay the court fee for a petition for writ of habeas corpus. The

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official would not process his money order request without seeing the legal document. Five days

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later, the matter was corrected. (ECF No. 1 at 3.)

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Petitioner asserts that the official violated his right of access to the courts. However, he

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fails to plead the elements of an access-to-courts claim. See Lewis v. Casey, 518 U.S. 343, 349-

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50, 353 (1996) (prisoner alleging a violation of his right of access to the courts must demonstrate

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that he has suffered “actual injury,” i.e., “demonstrate that a nonfrivolous legal claim had been

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frustrated or was being impeded.”).
Moreover, petitioner has not exhausted his available judicial remedies. See Laing v.

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Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (requiring that habeas petitioners exhaust “available

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judicial remedies before seeking relief under § 2241.”). Rather, he indicates that he did not

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pursue administrative remedies beyond the first level. (ECF No. 1 at 3-4.)

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For these reasons, and because it does not appear the petition can be cured by amendment,

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the petition will be dismissed without prejudice. See Rule 4 of the Rules Governing Habeas

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Corpus Cases Under Section 2254 (providing for summary dismissal of a habeas petition “[i]f it

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plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is

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not entitled to relief in the district court.”).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The petition is dismissed without prejudice; and

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2. The Clerk of Court shall close this case.

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Dated: January 26, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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