Gurry v. Butera-Ortiz

Filing 2

ORDER DISMISSING PETITIONER'S WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 11/21/11. (cl, COURT STAFF) (Filed on 11/21/2011)

*E-Filed 11/21/11*

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

SAN FRANCISCO DIVISION

9
CHRISTOPHER J. GURRY,

11
For the Northern District of California

United States District Court

10

12
13

No. C 11-0964 RS

Petitioner,
ORDER DISMISSING PETITONER’S
WRIT OF HABEAS CORPUS WITH
LEAVE TO AMEND

v.
CHRISTINE BUTERA-ORTIZ, UNITED
STATES PROBATION OFFICER,

14
15

Respondent.
____________________________________/

16
17

Petitioner Christopher J. Gurry was found guilty by a general court martial of committing

18

indecent acts on the body of a female under the age of 16 and of knowingly possessing visual

19

depictions of a nude minor. In 2007, petitioner was sentenced to confinement for four years,

20

reduction to E-1 rank, forfeiture of all pay and allowances, and a dishonorable discharge. Petitioner

21

sought, and was denied, relief both on direct appeal to the United States Air Force Court of Criminal

22

Appeals, and collateral review to the United States Court of Appeals for the Armed Forces. He is

23

now confined on supervised release in the Northern District of California. Gurry filed this action for

24

a writ of habeas corpus pursuant to 28 U.S.C. §§ 1331 & 2241. The Petition must be dismissed with

25

leave to amend for lack of jurisdiction. See Schlesinger v. Councilman, 420 U.S. 738, 746-47

26

(1975) (“[A]cts of a court martial, within the scope of its jurisdiction and duty, cannot be controlled

27

or reviewed in the civil courts, by writ of prohibition or otherwise.” (citing Smith v. Whitney, 116

28

U.S. 167, 177 (1886)). If petitioner elects to amend the Petition, he must do so within thirty days of

1

the date of this Order. Any amended petition should address Schlesinger v. Councilman and explain

2

why this Court should assert its jurisdiction over Gurry’s writ of habeas corpus.

3
4

IT IS SO ORDERED.

5
6
7

Dated: 11/21/11
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2