(HC) Kelley v. Brewer
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/17/2022 RECOMMENDING that Petitioner's successive application for a writ of habeas corpus be summarily dismissed with prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Spichka, K.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TROY X. KELLEY,
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Petitioner,
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No. 2:22-cv-01777-KJM-CKD P
v.
FINDINGS AND RECOMMENDATIONS
DAVID BREWER,
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Respondent.
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Petitioner is a former federal prisoner proceeding pro se in this habeas corpus action filed
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pursuant to 28 U.S.C. § 2241 challenging the execution of his sentence. The filing fee has been
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paid for this action.
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I.
Factual and Procedural Background
Petitioner challenges the execution of his sentence and contends that the Bureau of Prisons
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failed to properly calculate his release date pursuant to the First Step Act. According to
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petitioner’s habeas application, he was sentenced to a year and one day beginning on June 30,
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2021. ECF No. 1 at 2. He was released from FCI-Herlong on February 9, 2022. ECF No. 1 at 2.
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Based on the First Step Act, petitioner asserts that he should have been released 30 days earlier,
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even using the Bureau of Prisons’ own calculations. Id. Petitioner calculates that he served an
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extra 44 days in prison based on the BOP’s failure to award him the correct amount of First Step
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Act credits. Id. By way of relief, petitioner “asks this court to apply his missing First Step Act
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credit to his current parole and to hold a hearing on monetary compensation for the extra time
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served.” 1 Id. at 3.
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Petitioner acknowledges that he filed a prior § 2241 petition raising this same challenge.
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ECF No. 1 at 1; see also Kelley v. Thompson, et al., Case No. 2:21-cv-01813-JAM-KJN (E.D.
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Cal.) (hereinafter referred to as “Kelly I”). He contends that this prior habeas petition was
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incorrectly decided. ECF No. 1 at 1. Although petitioner appealed the denial of his first § 2241
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petition, it was dismissed on November 15, 2022 for failure to prosecute. See Kelley I, at ECF
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No. 23.
II.
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Legal Standards
A district court must award a writ of habeas corpus or issue an order to show cause why it
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should not be granted unless it appears from the application that the petitioner is not entitled to
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relief. 28 U.S.C. § 2243. Title 28 U.S.C. § 2244(a) provides that “[n]o circuit or district judge
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shall be required to entertain an application for a writ of habeas corpus to inquire into the
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detention of a person pursuant to a judgment of a court of the United States if it appears that the
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legality of such detention has been determined by a judge or court of the United States on a prior
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application for a writ of habeas corpus, except as provided in section 2255.” This bar on
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successive habeas actions has been found to include Section 2241 petitions. See Barapind v.
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Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) (refusing to apply bar on successive § 2241 petitions
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to a challenge to a Board of Immigration Appeals’ decision); Valona v. United States, 138 F.3d
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693, 694-95 (7th Cir. 1998) (recognizing that Section 2244(a) applies to prevent successive §
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2241 petitions); Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997) (barring as
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successive a § 2241 petition raising a repetitive challenge to the application of time credits in the
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administrative calculation of a federal prisoner’s sentence).
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Petitioner is advised that monetary compensation is not an available remedy in a habeas corpus
proceeding.
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III.
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Analysis
In this case, it plainly appears from petitioner’s § 2241 application that the legality of his
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detention has previously been determined by a district court judge. 2 The undersigned finds that
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the current § 2241 application is a successive petition because the same claims have been
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previously raised and rejected. Therefore, after conducting a preliminary examination of
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petitioner’s § 2241 application, the court concludes that he is not entitled to the relief requested
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and the instant habeas petition should be dismissed with prejudice as a successive habeas
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application. See Rule 1(b) of the Rules Governing Habeas Corpus Cases Under Section 2254
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(allowing a district court to “apply any or all of these rules” to other types of habeas corpus
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actions); Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 (requiring a
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preliminary review of a habeas corpus action).
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Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s successive application
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for a writ of habeas corpus be summarily dismissed with prejudice pursuant to 28 U.S.C. §
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2244(a).
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, petitioner may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Petitioner is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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Dated: November 17, 2022
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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12/kell1777.summdismiss.docx
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This court takes judicial notice of petitioner’s prior § 2241 petition filed in this district. See
Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993).
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