(HC) Huasica v. Warden, FCI Herlong ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE HUASICA, No. 2:23-cv-02271-CKD P 12 Petitioner, 13 v. ORDER 14 WARDEN, FCI HERLONG, 15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2241. 19 I. 2241 Petition 20 In his two-page habeas application, petitioner asks the court to order the Bureau of Prisons 21 to apply an unspecified number of time credits pursuant to the First Step Act to his sentence.1 22 However, the petition does not contain any supporting facts to justify this request for relief. It 23 appears to the court that the petition is missing pages because the last sentence on the first page 24 does not continue on the second page. Although petitioner attached several pages of exhibits to 25 the petition, the court is unable to decipher exactly how they support petitioner’s request for 26 relief. ECF No. 1 at 3-7. 27 28 1Hereinafter, the court refers to the First Step Act as the “FSA.” 1 II. Preliminary Review Requirement 2 Rule 4 of the Rules Governing § 2254 Cases requires the court to conduct a preliminary 3 review of each petition for writ of habeas corpus.2 While pro se habeas corpus petitions are 4 liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the court must dismiss a 5 petition “[i]f it plainly appears from the petition...that the petitioner is not entitled to relief.” 6 Rules Governing Habeas Corpus Cases Under Section 2254, Rule 4; Hendricks v. Vasquez, 908 7 F.2d 490, 491 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of 8 relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief 9 requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real 10 possibility of a constitutional error. Mayle v. Felix, 545 U.S. 644, 655 (2005) (“Habeas Corpus 11 Rule 2(c) is more demanding”). Allegations in a petition that are vague, conclusory, or palpably 12 incredible are subject to summary dismissal. Hendricks, 908 F.2d at 491. A court may dismiss a 13 petition when “it appears from the application that the applicant or person detained is not entitled” 14 to habeas relief. 28 U.S.C. § 2243. However, a habeas petition should not be dismissed without 15 leave to amend “unless it appears that no tenable claim for relief can be pleaded were such leave 16 to be granted.” Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curiam). 17 III. Analysis 18 Petitioner’s request for the application of FSA time credits is an attempt to challenge the 19 execution of his federal sentence. Therefore, a § 2241 petition is the correct procedural vehicle 20 for petitioner’s challenge. However, the petition does not identify any specific time credits which 21 the BOP has failed to credit to his projected release date. As a result, his habeas corpus petition 22 does not sufficiently state any claim for relief. See 28 U.S.C. § 2241(c)(3) (emphasizing that 23 “The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation 24 of the Constitution or laws or treaties of the United States.”). For this reason, the petition fails to 25 comply with Rule 2(c), Rules Governing Section 2254 Cases. Therefore, the petition is dismissed 26 27 2 The Rules Governing § 2254 cases in the United States Courts may be applied to habeas corpus petitions filed pursuant to 28 U.S.C. § 2241. See Rules Governing Habeas Corpus Cases Under 28 Section 2254, Rule 1(b). 1 || with leave to amend. Rule 4, Rules Governing Section 2254 Cases. In the amended petition, 2 || petitioner must set forth each claim for relief and summarize the facts he alleges support each of 3 || the identified claims. 4 The court also notes that petitioner has not filed a request to proceed in forma pauperis or 5 || paid the required filing fee of $5.00. See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner will be 6 || provided the opportunity to either submit the appropriate affidavit in support of a request to 7 || proceed in forma pauperis or submit the appropriate filing fee. 8 Accordingly, IT IS HERBY ORDERED that: 9 1. Petitioner’s application for a writ of habeas corpus (ECF No. 1) is dismissed with leave 10 | to amend. 11 2. Within 30 days from the date of this order, petitioner may file a first amended § 2241 12 | petition containing all of his claims for relief including any relevant attachments. 13 3. Petitioner is also ordered to submit, within thirty days from the date of this order, an 14 | affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee. 15 4. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis 16 | form used by this district. 17 5. The failure to file an amended petition and in forma pauperis application within the 18 || time provided shall result in a recommendation that this action be dismissed pursuant to Rule 19 || 41(b) of the Federal Rules of Civil Procedure. 20 || Dated: November 20, 2023 / a8 } Ht | / 3 p Sak 21 CAROLYN K.DELANEY 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 12/huas2271.2241.Ita 26 27 28