Carver v. United States ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JESSICA LYNN CARVER, 11 Case No. 18-06891 EJD (PR) Petitioner, 12 ORDER TO SHOW CAUSE v. 13 14 UNITED STATES OF AMERICA, 15 Respondent. 16 17 18 Petitioner, a federal prisoner at the Federal Correctional Institution (“FCI”) in 19 Dublin, California, filed in pro se a “Request for Credit of Home Monitoring System 20 Time,” which would advance her release date by 10 months, in the Western District of 21 Washington. (Docket No. 1.) The matter was construed as a petition for writ of habeas 22 corpus under 28 U.S.C. § 2241 and transferred to this Court. (Docket No. 3.) 23 Because the petition was silent with respect to the exhaustion of administrative 24 remedies, the Court directed Petitioner to show cause why the petition should not be 25 dismissed for failure to exhaust administrative remedies before filing the instant petition. 26 (Docket No. 9.) Petitioner has filed a response, providing copies of documents purporting 27 to show that she exhausted administrative remedies in a timely manner. (Docket No. 10.) 1 DISCUSSION 2 A. Standard of Review 3 Review of the execution of a federal sentence is properly brought as a petition under 4 28 U.S.C. § 2241. See United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) 5 (presentence time credit claim). This Court may entertain a petition for writ of habeas 6 corpus from a person “in custody in violation of the Constitution or laws or treaties of the 7 United States.” 28 U.S.C. § 2241(c)(3). This power extends to reviewing challenges to 8 the Board of Parole’s decisions regarding execution of federal criminal sentences, 9 including calculation of release date. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th 10 Cir. 2000). The court shall “award the writ or issue an order directing the respondent to 11 show cause why the writ should not be granted, unless it appears from the application that 12 the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary 13 dismissal is appropriate only where the allegations in the petition are vague or conclusory, 14 palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 15 490, 491 (9th Cir. 1990). 16 B. Legal Claims 17 Petitioner seeks modification of her release date from January 26, 2021, to March 18 26, 2020. (Pet. at 1.) Petitioner claims that if the Court takes into account prior custody 19 credit, she would be entitled to the earlier release date. (Id. at 2.) Liberally construed, this 20 claim is cognizable and merits an answer from Respondent. 21 22 CONCLUSION 23 For the foregoing reasons and for good cause shown, 24 1. The Clerk shall serve by mail a copy of this order and the petition and all 25 attachments thereto on Respondent and Respondent’s attorney, the United States Attorney 26 for the Northern District of California. The Clerk also shall serve a copy of this order on 1 2. Respondent shall file with the court and serve on Petitioner, within sixty (60) 2 || days of the issuance of this order, an answer showing cause why a writ of habeas corpus 3 || should not be issued. Respondent shall file with the answer and serve on Petitioner a copy 4 of all portions of Petitioner’s federal criminal record that are relevant to a determination of 5 |} the issues presented by the petition. 6 If Petitioner wishes to respond to the answer, she shall do so by filing a traverse 7 || with the Court and serving it on Respondent within thirty (30) days of his receipt of the || answer. 9 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 10 answer. If Respondent files such a motion, Petitioner shall file with the Court and serve on 11 || Respondent an opposition or statement of non-opposition within twenty-eight (28) days of 22 receipt of the motion, and Respondent shall file with the court and serve on Petitioner a 13 || reply within fourteen (14) days of receipt of any opposition. S 14 4. It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded 3 15 || that all communications with the Court must be served on Respondent by mailing a true a 16 || copy of the document to Respondent’s counsel. Petitioner must keep the Court and all 3 17 || parties informed of any change of address by filing a separate paper captioned “‘Notice of 18 || Change of Address.” She must comply with the Court’s orders in a timely fashion. 19 || Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 20 || to Federal Rule of Civil Procedure 41(b). 21 5. Upon a showing of good cause, requests for a reasonable extension of time 22 || will be granted provided they are filed on or before the deadline they seek to extend. 23 IT IS SO ORDERED. aD 24 || Dated: _ 2/20/2020 EDWARD J. DAVILA United States District Judge 26 □□□□□□□□□□□□□□□□□□□□□□□□□□□ 2041_ose 27