(HC) Alvarado-Melendez v. United States ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE A. MELENDEZ, Case No. 1:20-cv-01783-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION TO 14 UNITED STATES OF AMERICA, DISMISS DUPLICATIVE PETITION FOR WRIT OF HABEAS CORPUS 15 Respondent. [21-DAY OBJECTION DEADLINE] 16 17 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition 18 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 19 On December 18, 2020, Petitioner filed the instant petition for writ of habeas corpus in 20 the United States District Court for the Middle District of Pennsylvania. Because the petition 21 challenges the execution of Petitioner’s sentence, and Petitioner is incarcerated at the United 22 States Penitentiary located in Atwater, California, which is within the jurisdiction of this Court, 23 the petition was transferred here. Upon review of the petition, the Court finds it to be duplicative 24 of a previously filed petition. Therefore, the Court will recommend it be DISMISSED. 25 DISCUSSION 26 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 27 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 1 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 2 A petition for habeas corpus should not be dismissed without leave to amend unless it appears 3 that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 4 F.2d 13, 14 (9th Cir. 1971). 5 Petitioner alleges that the BOP has failed to properly credit his sentence with 859 days of 6 prior custody time. The petition is duplicative of the petition filed on December 16, 2020, in 7 Melendez v. Barr, Case No. 1:20-cv-01773-SKO. A federal court must dismiss a second or 8 successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). 9 ORDER 10 Accordingly, the Clerk of Court is DIRECTED to assign a District Judge to this case. 11 RECOMMENDATION 12 For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition be 13 DISMISSED. 14 This Findings and Recommendation is submitted to the United States District Court Judge 15 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 16 of the Local Rules of Practice for the United States District Court, Eastern District of California. 17 Within twenty-one days after being served with a copy, Petitioner may file written objections 18 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s 19 Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling 20 pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within 21 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 22 F.2d 1153 (9th Cir. 1991). 23 IT IS SO ORDERED. 24 Sheila K. Oberto 25 Dated: January 4, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 26 27