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)

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*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

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