Quan v. U.S. Bureau of Prisons

FILED
NOT FOR PUBLICATION OCT 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JIMMY QUAN, No. 08-17676
Petitioner - Appellant, D.C. No. 1:08-cv-00511-LJO
v.
MEMORANDUM *
U.S. BUREAU OF PRISONS and D.
SMITH, Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted October 19, 2010 **
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
Federal prisoner Jimmy Quan appeals pro se from the district court’s
judgment denying, in part, his 28 U.S.C. § 2241 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The Bureau of Prisons (BOP) contends that the district court lacked
jurisdiction to consider Quan’s petition under 28 U.S.C. § 2241. This contention
fails because Quan currently challenges the manner in which his sentence was
executed. See Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991) (stating that
challenges to the manner in which a sentence was executed are maintainable only
in habeas petitions filed under § 2241); see also Rodriguez v. Smith, 541 F.3d 1180(9th Cir. 2008) (granting a petition filed under § 2241 that challenged a BOP
policy regarding the transfer of inmates to Residential Re-entry Centers) .
Quan contends that the BOP continues to categorically refuse to consider
placing prisoners in Residential Re-entry Centers (RRC) prior to their final six
months of incarceration, in violation of 18 U.S.C. §§ 3621(b), 3624(c), and
Rodriguez. This contention fails because Quan has not presented any evidence to
support this claim.
Quan also contends that, under § 3621(b) and Rodriguez, the BOP is
required to immediately assess him for placement in an RCC. This contention fails
because § 3621(b) provides the BOP with discretionary authority to consider RCC
placement for inmates prior to the last ten percent of the prison term. See
Rodriguez, 541 F.3d at 1182-85.
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Finally, Quan contends that the BOP is required to consider placing him in
an RCC for the last ten percent of his sentence. While a true statement of law, see
id. at 1184, Quan does not present any basis for relief because Quan concedes that
he is not yet serving the last ten percent of the prison term. See 18 Unnamed
“John Smith” Prisoners v. Meese, 871 F.2d 881, 882-83 (9th Cir. 1989)
(controversy required for claim to be ripe).
AFFIRMED.
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