Opinion
CV 23-1587-GW(E)
06-23-2023
NICHOLAS ALBRECHT, Petitioner, v. BRYAN BIRKHOLZ, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
PROCEEDINGS
Petitioner filed a "Petition for a Writ of Habeas Corpus By a Person in Federal Custody (28 U.S.C. § 2241)" on March 2, 2023. Respondent filed a "Motion to Dismiss, etc." on March 24, 2023. Despite receiving multiple extensions of time, Petitioner failed to file any timely opposition to the Motion to Dismiss. See Minute Orders, filed March 24, 2023, April 12, 2023, and May 4, 2023.
BACKGROUND
Petitioner alleges that the Bureau of Prisons ("BOP") violated due process by revoking Petitioner's home confinement under the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") (Petition, p. 3) . Petitioner alleges that a "routine inspection" of his home supposedly revealed that Petitioner had violated the BOP rule prohibiting the possession of alcohol (id., pp. 3, 6). As a result, Petitioner was transferred back to prison (id.).
The Petition and the attachments thereto do not bear consecutive page numbers. The Court uses the ECF pagination when referring to the Petition or the attachments thereto.
Respondent contends that the Court lacks jurisdiction to consider the Petition because Petitioner assertedly is challenging the BOP's independent discretionary determination regarding inmate placement (Motion to Dismiss, pp. 8-10). Respondent also contends that Petitioner has not exhausted his available administrative remedies (id., pp. 10-11).
DISCUSSION
For the reasons discussed below, the Petition should be denied and dismissed with prejudice.
I. The Court Lacks Habeas Jurisdiction Over Petitionerls Challenge to the Revocation of Home Confinement.
Section 2241 authorizes habeas relief for federal prisoners who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(1), (3). However, "the writ of habeas corpus is limited to attacks upon the legality or duration of confinement." Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (citing Preiser v. Rodriguez, 411 U.S. 475, 484-86 (1973)). Although habeas jurisdiction may exist where a challenge to prison conditions, if successful, would necessarily shorten the custodial portion of a petitioner's sentence, habeas jurisdiction is absent where a successful challenge to prison conditions would not necessarily shorten the custodial portion of the sentence. See Pinson v. Carvajal, 2023 WL 3876485, at *8-13 (9th Cir. June 8, 2023); Nettles v. Grounds, 830 F.3d 922, 927-29 (9th Cir. 2016) (en banc), cert, denied, 137 S.Ct. 645 (2017); Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003), cert, denied, 541 U.S. 1063 (2004).
In the present case, Petitioner challenges the BOP's revocation of home confinement. Petitioner does not challenge the fact or duration of his sentence, but only the location where he must serve the custodial portion of his sentence. Therefore, the Court lacks jurisdiction to consider Petitioner's challenge. See Ramirez v. Galaza, 334 F.3d at 859; see also Triplett v. FCI Herlong, Warden, 2023 WL 2760829, at *2-3 (E.D. Cal. Apr. 3, 2023), adopted, 2023 WL 3467145 (E.D. Cal. May 15, 2023) (the court lacks jurisdiction under Section 2241 to consider petitioner's challenge to the BOP's revocation of the CARES Act home confinement); Long v. Hendrix, 2023 WL 2898871, at *1 (D. Ore. Mar. 8, 2023) (petitioner's challenge to the BOP's determination that the inmate is ineligible for CARES Act home placement raised "no challenge to the legality or duration of his confinement, and since granting him the relief he seeks would not necessarily shorten his sentence, the [c]ourt lacks jurisdiction to consider [p]etitioner's claims").
II. The Court Also Lacks Jurisdiction to Order a Transfer Back to Home Confinement.
The Court also lacks jurisdiction over Petitioner's related claim that he should be transferred back to home confinement under the CARES Act (Petition, p. 3). The decision whether to place a prisoner on home confinement lies within the exclusive authority of the BOP. See 18 U.S.C. § 3624(c)(6)(A); 18 U.S.C. § 3621(b) ("The [BOP] shall designate the place of the prisoner's imprisonment."); United States v. Ceballos, 671 F.3d 852, 855 (9th Cir. 2011) ("The [BOP] has the statutory authority to choose the locations where prisoners serve their sentence."). Although the CARES Act expands the BOP's discretionary authority for placement in home confinement, the Act does not necessarily mandate home confinement in any individual case; the decision to transfer an inmate to home confinement remains within the discretion of the BOP. See CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020); 18 U.S.C. § 3624(c)(2) (This authority "maybe used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment or 6 months. The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph").
Petitioner's claim that the BOP violated due process by revoking his home confinement placement alleges only a challenge to the BOP's individualized placement decision. The Ninth Circuit squarely has held that a federal court lacks jurisdiction under Section 2241 to review the BOP's individualized placement decision. See Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) ("Reeb") ("To find that prisoners can bring habeas petitions under 28 U.S.C. § 2241 to challenge the BOP's discretionary determinations made pursuant to 18 U.S.C. § 3621 would be inconsistent with the language of 18 U.S.C. § 3625."). Consequently, courts in this Circuit repeatedly have held that a section 2241 petition may not properly challenge discretionary placement decisions under the CARES Act. See e,g., Huihui v. Derr, 2023 WL 184121, at *2 (D. Hawaii Jan. 13, 2023) ("Even under the CARES ACT . . . the decision to transfer a prisoner to home confinement remains within the discretion of the BOP and not within the purview of the District Court") (citations and quotations omitted); Diaz-Lozano v. B.M. Trate, 2022 WL 17418248 at *1 (E.D. Cal. Nov. 2, 2022), adopted, 2022 WL 17417716 (E.D. Cal. Dec. 5, 2022) ("Petitioner cannot base a federal habeas petition on the CARES Act . . . . [T]he BOP's determination remains discretionary and outside the scope of a Section 2241 petition."); Jones v. Gutierrez, 2021 WL 2877458, *7 (C.D. Cal. May 28, 2021), adopted, Jones v. Gutierrez, 2021 WL 2864867 (C.D. Cal. Jul. 8, 2021) ("the court lacks the power to order that a prisoner be released to home confinement, even under the CARES Act.") (citation omitted); Khounmany v. Carvajal, 2021 WL 2186218 at *8 (N.D. Cal. May 28, 2021) (same); Lustig v. Warden, FCI Lompoc, 2021 WL 1164493, at *2 (C.D. Cal. Jan. 4, 2021), adopted, 2021 WL 1164474 (C.D. Cal. Mar. 26, 2021) (applying Reeb, holding that the court lacked habeas jurisdiction to consider CARES Act claim); Smith v. Von Blanckensee, 2020 WL 4370954 at *2 (C.D. Cal. July 2, 2020), adopted, 2020 WL 4368060 (C.D. Cal. July 30, 2020) ("[T[his Court does not have the authority to order a transfer to home confinement, under the CARES Act or otherwise. Congress gave the Attorney General, and by designation the BOP, exclusive authority to determine custody placements including home confinement"); accord Long v. Hendrix, 2023 WL 2898871, at *1, n. 1.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
Because the Court lacks jurisdiction over the claims in the Petition, the Court need not and does not reach the exhaustion issues raised in the Motion to Dismiss.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.