(HC) French v. Barr ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARIN JEROME FRENCH, No. 1:20-cv-01107-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION 13 v. ORDER DIRECTING CLERK OF COURT 14 WILLIAM BARR, Warden, et al., TO ASSIGN DISTRICT JUDGE 15 Respondents. [TWENTY-ONE DAY OBJECTION DEADLINE] 16 17 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2241. 19 On August 10, 2020, Petitioner filed the instant habeas petition. (Doc. 1.) Petitioner 20 seeks a recommendation from the Court that he be placed in home confinement for the remainder 21 of his sentence. The Court will recommend the petition be DISMISSED WITH PREJUDICE for 22 lack of jurisdiction and standing. 23 DISCUSSION 24 I. Preliminary Review of Petition 25 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 26 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 27 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 28 1 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 2 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 3 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 4 2001). Accordingly, the Court should exercise its authority under Rule 4 and dismiss the petition. 5 II. Background 6 Petitioner is currently serving an aggregate 180-month sentence for convictions in 2001 7 and 2009 in the United States District Court for the District of Nevada for wire fraud, mail fraud, 8 and money laundering. (Doc. 1 at 1.) He has a projected release date of September 11, 2022. 9 (Doc. 1 at 1.) 10 According to a Bureau of Prisons “Summary Reentry Plan – Progress Report” dated May 11 24, 2020, the Unit Team at Petitioner’s institution recommended that he be placed in direct home 12 confinement on June 11, 2020, pursuant to 18 U.S.C. § 3621(b). (Doc. 1 at 11.) Petitioner 13 further states that on June 4, 2020, United States Probation Officer Karen Lucero approved 14 Petitioner’s release address in Susanville, California. (Doc. 1 at 1.) On June 30, 2020, the Bureau 15 of Prisons’ Sacramento Residential Reentry Center Office denied placement in home 16 confinement. (Doc. 1 at 1.) Petitioner challenges this denial. 17 III. Jurisdiction 18 Writ of habeas corpus relief extends to a person in custody under the authority of the 19 United States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a federal prisoner 20 can show he is “in custody in violation of the Constitution or laws or treaties of the United 21 States.” 28 U.S.C. § 2241(c)(3). Petitioner’s claims are appropriately brought under 28 U.S.C. § 22 2241 because they concern the manner, location, or conditions of the execution of petitioner’s 23 sentence and not the fact of petitioner’s conviction or sentence. Tucker v. Carlson, 925 F.2d 330, 24 331 (9th Cir. 1990) (stating that a challenge to the execution of a sentence is “maintainable only 25 in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241”). 26 The BOP is solely responsible for designating the place of a federal prisoner's 27 confinement. 18 U.S.C. § 3621(b). As Petitioner concedes, a federal habeas court lacks 28 jurisdiction to review the BOP's individualized placement determinations. Reeb v. Thomas, 636 1 F.3d 1224, 1227-28 (9th Cir. 2011) (“To find that prisoners can bring habeas petitions under 28 2 U.S.C. § 2241 to challenge the [BOP's] discretionary-determinations made pursuant to 18 U.S.C. 3 § 3621 would be inconsistent with the language of 18 U.S.C. § 3625.... [F]ederal courts lack 4 jurisdiction to review the [BOP's] individualized [ ] determinations made pursuant to 18 U.S.C. § 5 3621.”); see also United States v. Draqna, 746 F.2d 457, 458 (9th Cir.1984), cert. denied, 469 6 U.S. 1211 (1985) (district court does not have jurisdiction to decide the location of a defendant's 7 incarceration; that decision rests solely with the executive branch). This Court lacks jurisdiction 8 to review the individualized determination made by the BOP. Accordingly, the petition must be 9 dismissed. 10 Petitioner acknowledges that the Court cannot order an inmate to home confinement; 11 therefore, he requests a “recommendation” from the Court to the Department of Justice to request 12 the Bureau of Prisons place him in home confinement. Petitioner fails to demonstrate that he has 13 standing to pursue relief. To establish standing, “[a] plaintiff must allege personal injury fairly 14 traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the 15 requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984). The injury must be “an invasion of 16 a legally protected interest which is (a) concrete and particularized and (b) ‘actual or imminent,’” 17 not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) 18 (citations omitted). Petitioner is essentially asking for speculative opinion relief. As such, he 19 lacks Article III standing. 20 ORDER 21 The Court hereby DIRECTS the Clerk of Court to assign a District Judge to this case. 22 RECOMMENDATION 23 For the foregoing reasons, the Court RECOMMENDS that the petition for writ of habeas 24 corpus be DISMISSED WITH PREJUDICE. 25 This Findings and Recommendation is submitted to the United States District Court Judge 26 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 27 of the Local Rules of Practice for the United States District Court, Eastern District of California. 28 Within twenty-one (21) days after being served with a copy, any party may file written objections 1 with the court and serve a copy on all parties. Such a document should be captioned “Objections 2 to Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served 3 and filed within ten (10) court days (plus three days if served by mail) after service of the 4 objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 5 (b)(1)(C). The parties are advised that failure to file objections within the specified time may 6 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 7 1991). 8 IT IS SO ORDERED. 9 Sheila K. Oberto 10 Dated: August 14, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28