Tanuvasa vs. United States of America

Filing 4

ORDER DISMISSING PETITION AND DENYING MOTION FOR APPOINTMENT OF COUNSEL AND CERTIFICATE OF APPEALABILITY re 1 , 2 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/27/2014. "The Petition is DISMISSED without prejudice purs uant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts Tanuvasa's Motion for Appointment of Counsel is DENIED. Reasonable jurists would not find this assessment debatable or wrong, and a certificate of a ppealability is DENIED." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Atlantica K. Tanuvasa served by first class mail at the address of record on August 27, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ATLANTICA K. TANUVASA, FED.
REG. #99306-022,

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Petitioner,
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vs.
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UNITED STATES OF AMERICA,
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Respondent.
_____________________________ )

CIV. NO. 14-378 SOM-RLP
ORDER DISMISSING PETITION AND
DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND
CERTIFICATE OF APPEALABILITY

ORDER DISMISSING PETITION AND
DENYING MOTION FOR APPOINTMENT OF COUNSEL
AND CERTIFICATE OF APPEALABILITY
Before the court is Petitioner Atlantica K. Tanuvasa’s
document, titled “Defendants [sic] Motion of Reconsideration To
Change Method by Which Balance Of Sentence is Served,” in which
she seeks early release from prison into home detention.
No. 1.

Doc.

Tanuvasa is a federal prisoner housed at the Federal

Correctional Complex, located in Adelanto, California.

Although

Tanuvasa refers to this Motion as brought pursuant to 28 U.S.C.
§ 2255, “petitions that challenge the manner, location, or
conditions of a sentence’s execution must be brought pursuant to
[28 U.S.C.] § 2241 in the custodial court.”

Hernandez v.

Campbell, 204 F.3d 861, 864 (9th Cir. 2000); 28 U.S.C. § 2241(d);
Braden v. 30th Judicial Circuit, 410 U.S. 484, 495-500 (1973);
Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989) (district of

confinement best forum to review execution of sentence).
Tanuvasa may not file this petition as a motion to
vacate, set aside, or correct her sentence in her criminal case.
Rather, she must initiate a wholly new civil action independent
from her criminal case.

Further, a petition brought under § 2241

must name the prisoner’s custodian as the respondent.
Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).

See
The

warden of the penitentiary or correctional facility where the
prisoner is confined constitutes the “custodian” who must be
named in such an action, and the petition must be filed in the
district of confinement.

Id.; Rumsfeld v. Padilla, 542 U.S. 426,

442 (2004).
Tanuvasa is confined at the federal prison camp in
Adelanto, California, which is located in San Bernadino County.
San Bernadino County is located within the Central District of
California.

Tanuvasa must file her petition under 28 U.S.C.

§ 2241 in the United States District Court for the District of
California.

This court does not have personal jurisdiction over

Tanuvasa’s custodian to order her release to home custody.

See

Padilla, 542 U.S. at 442.
The Petition is DISMISSED without prejudice pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in the United

2

States District Courts.1
Counsel is DENIED.

Tanuvasa’s Motion for Appointment of

Reasonable jurists would not find this

assessment debatable or wrong, and a certificate of appealability
is DENIED.

See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2253(c).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 27, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Tanuvasa v. United States, Civ. No. 14-00378 SOM-RLP; psa/hab/2014/2241 Tanuvasa;
J:\Denise's Draft Orders\SOM\Tanuvasa 14-378 som (2241, home release).wpd

1

Rule 4 applies to petitions brought under § 2241. See
e.g., Castillo v. Pratt, 162 F. Supp. 2d 575, 577 (N.D. Tex.
2001); United States v. Recinos-Gallegos, 151 F. Supp. 2d 659 (D.
Md. 2001) (dismissing petition construed as falling under § 2241
pursuant to Rule 4); Ukawabutu v. Morton, 997 F. Supp. 605, 608
n.2 (D.N.J. 1998).
3