Melara v. United States of America

Filing 9

ORDER Dismissing Petition for Writ of Habeas Corpus. Signed by Judge Michael M. Anello on 7/11/2017.(All non-registered users served via U.S. Mail Service)(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 17cv921-MMA (AGS) CARLOS ALFREDO MELARA, Petitioner, 12 13 v. 14 ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS UNITED STATES OF AMERICA, Respondent. 15 16 17 Petitioner Carlos Alfredo Melara (“Melara”), proceeding pro se, has filed a 18 Petition for Writ of Habeas Corpus (“petition”) pursuant to Title 28 of the United States 19 Code, section 2241, challenging events that occurred while serving a previous term of 20 incarceration. See Doc. No. 1. For the reasons set forth below, the Court DISMISSES 21 Melara’s petition. 22 23 BACKGROUND On June 25, 2009, Melara was convicted of illegal reentry, Case No. 5:09cr477, in 24 the Southern District of Texas, Laredo Division. The court sentenced Melara to a forty- 25 six month term of imprisonment and a three year term of supervised release. According 26 to the records of United States Probation, on June 1, 2012, Melara was released to the 27 custody of the United States Immigration and Customs Enforcement Services. Melara 28 was deported to El Salvador on September 5, 2012, through Dallas, Texas. 1 17cv921-MMA (AGS) 1 On April 19, 2014, United States Border Patrol Agents encountered Melara 2 walking in the brush three miles east of the Port of Entry at Otay Mesa, California, in this 3 judicial district. On April 21, 2014, Melara was charged with illegal reentry. Melara 4 pleaded guilty to the charge, and was sentenced in Case No. 3:14cr1349-H to a thirty 5 month term of imprisonment. After he completed his sentence, Melara was transferred 6 back to the Southern District of Texas. He pleaded guilty to violating the condition of his 7 term of supervised release which prohibited him from reentering the United States 8 illegally subsequent to deportation. On October 18, 2016, the court sentenced Defendant 9 to an eleven month term of imprisonment. According to the Bureau of Prisons (“BOP”) 10 online Inmate Locator, Melara was released from BOP custody on May 22, 2017.1 11 DISCUSSION 12 Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court is 13 required to make a preliminary review of each petition for writ of habeas corpus.2 “If it 14 plainly appears from the face of the petition . . . that the petitioner is not entitled to 15 relief,” the Court must dismiss the petition. Rule 4 of the Rules Governing § 2254 Cases; 16 see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Challenges to the “manner, 17 location, or conditions of a sentence’s execution must be brought pursuant to § 2241 in 18 the custodial court.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per 19 curiam). 20 A review of the petition reveals that Melara complains of events occurring between 21 2014 and 2016 at United States Prison – Victorville, while he was serving the thirty 22 month sentence imposed in Case No. 14cr1349-H. Melara claims that in September 23 2014, prison officials brought him against his will to a medical facility, where he was 24                                                 25 26 27 28 1 See (last visited 7/3/2017). The Court notes that Melara has not provided a current address, as required by this District’s Civil Local Rules. See SD CivLR 83.11.b (“A party proceeding pro se must keep the court and opposing parties advised as to current address.”). 2 The Rules Governing § 2254 Cases can be applied to petitions other than those brought under § 2254 at the Court’s discretion. See Rule 1(b) of the Rules Governing § 2254 Cases. 2 17cv921-MMA (AGS) 1 injected with something that caused hypo-pigmentation on his face and arms, numbness 2 in his right leg, and sensitivity to sun exposure. Based on these allegations, Melara 3 brings a claim for medical negligence. Melara seeks damages and proper medical 4 treatment. 5 Melara’s petition is subject to dismissal on several grounds. First, the writ of 6 habeas corpus extends only to a person in custody under the authority of the United 7 States. See 28 U.S.C. § 2241. Relief under Section 2241 is available only if a federal 8 inmate can show he is “in custody in violation of the Constitution or laws or treaties of 9 the United States.” 28 U.S.C. § 2241(c)(3). Melara was released from BOP custody on 10 May 22, 2017. Because the “in custody” requirement is jurisdictional, it appears that the 11 Court lacks jurisdiction over Melara’s petition. Wilson v. Belleque, 554 F.3d 816, 821 12 (9th Cir.2009) (“The text of the statute makes clear, and the Supreme Court has 13 confirmed, that ‘custody’ is a jurisdictional prerequisite to habeas review under § 14 2241(c)(3).”) (citing Hensley v. Mun. Court, 411 U.S. 345, 351 (1973)). 15 Second, the Supreme Court has interpreted the “in custody” requirement to mean 16 that the petitioner is in custody pursuant to the conviction or sentence under attack at the 17 time the petition is filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Melara’s claim 18 arises out of events that took place while he was serving the sentence imposed in Case 19 No. 3:14cr1349-MMA. Melara completed that term of imprisonment in 2016, and no 20 term of supervised release was imposed. Therefore, even if Melara were still in custody, 21 he would not be in custody pursuant to his 2014 conviction and sentence. 22 Finally, where a federal inmate challenges the conditions of his confinement, rather 23 than its duration or execution, he must bring his claims in a civil rights action under 24 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 25 (1971). In this case, Melara’s medical negligence claims involves the conditions of his 26 previous confinement, not the fact or duration of that confinement. And while the Court 27 has the discretion to re-characterize Melara’s petition as a civil rights complaint, it will 28 not do so in this case. See Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016). Melara 3 17cv921-MMA (AGS) 1 names only the United States as a respondent. A plaintiff cannot maintain a Bivens action 2 against the United States. See Cato v. United States, 70 F.3d 1103, 1110 (9th Cir. 1995). 3 Moreover, Melara alleges only medical negligence, which is insufficient to state a 4 plausible constitutional claim. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 5 L. Ed. 2d 251 (1976) (“[A] complaint that a physician has been negligent in diagnosing 6 or treating a medical condition does not state a valid claim of medical mistreatment under 7 the Eighth Amendment. Medical malpractice does not become a constitutional violation 8 merely because the victim is a prisoner.”). 9 CONCLUSION 10 It plainly appears from the face of Melara’s petition that this Court lacks 11 jurisdiction and Melara is not entitled to relief. See Rule 4 of the Rules Governing § 12 2254 Cases. Accordingly, the Court DISMISSES the petition for writ of habeas corpus 13 without prejudice and without leave to amend. See Jarvis v. Nelson, 440 F.2d 13, 14 (9th 14 Cir. 1971) (petition for habeas corpus may be dismissed without leave to amend if “it 15 appears that no tenable claim for relief can be pleaded were such leave granted.”). The 16 Clerk of Court is instructed to enter judgment accordingly and close the case. 17 18 19 IT IS SO ORDERED. DATE: July 11, 2017 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 20 21 22 23 24 25 26 27 28 4 17cv921-MMA (AGS)

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