Alcala v. Rios

Full title: JONNIE ANGEL ALCALA, Petitioner, v. HECTOR RIOS, Warden, et.al.…

Court: United States District Court, E.D. California

Date published: Aug 2, 2011

1:08-cv-01676-DLB HC (E.D. Cal. Aug. 2, 2011)

Opinion

1:08-cv-01676-DLB HC.

August 2, 2011

ORDER GRANTING PETITIONER LEAVE TO FILE AN AMENDED PETITION [Doc. 1.]

DENNIS BECK, Magistrate Judge

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.

On May 11, 2009, the Court dismissed the instant petition for writ of habeas corpus for lack of subject matter jurisdiction, and judgment was entered this same date.

On May 25, 2011, the Ninth Circuit affirmed in part and reversed and remanded in part stating:

The district court correctly concluded that Alcala's claims are not cognizable under 28 U.S.C. § 2241 because they do not concern the fact or duration of his confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). Even giving Alcala's pro se complaint "the benefit of liberal construction," Porter v. Ollison, 620 F.3d 952, 958 (9^th Cir. 2010), the petition challenges the conditions of confinement and therefore should have been brought as a civil rights action. See Preiser, 411 U.S. at 489; see also 42 U.S.C. § 1983; Bivens v. Six Uknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395-397 (1971).

The district court erred, however, in failing to grant Alcala leae to amend his complaint. . . . We therefore remand with instructions to allow leave to amend.

(Opinion, at 2.)

In his petition, Petitioner indicates that in 2008, Congress enacted the Second Chance Act to implement various forms of rehabilitative programs for federal prisoners.¹ Petitioner contends that the Bureau of Prisons has not implemented any of these programs. In his request for relief Petitioner requests implementation of new programming only and Petitioner does not allege or request relief that impacts the fact or duration of his sentence. Accordingly, the instant petition must be dismissed for failure to present a cognizable challenge under section 2241. However, the Court will grant Petitioner leave to amend the petition to include allegations which may impact the fact or duration of his sentence. Based on the foregoing, it is HEREBY ORDERED that:

1 In response to numerous judicial decisions, the Second Chance Act also amended 18 U.S.C. § 3624(c), to allow a transfer to a Residential Recreational Center "RRC" for up to the final twelve months of the inmate's sentence.

1. Within thirty (30) days from the date of service of this order, Petitioner shall file an amended petition;

2. Petitioner is advised that the amended petition must be complete in itself pursuant to Local Rule 220; and

3. The failure to comply with this order will result in dismissal of the action for failure to prosecute. Local Rule 110.

IT IS SO ORDERED.

Dated: August 1, 2011

28 U.S.C. § 2241 FORMS AND INSTRUCTIONS PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN FEDERAL CUSTODY UNDER 28 U.S.C. § 2241, et seq. CONTENTS OF THIS PACKET: 1. (form) "Petition for Writ of Habeas Corpus" 2. (form) "Application to Proceed in Forma Pauperis" — with information sheet

INSTRUCTIONS — READ CAREFULLY

brief in forma pauperis, the original and two copies This could result in the dismissal of your case. See in forma pauperis. 1. This petition must be an original (not a photocopy), legibly handwritten or typewritten, and signed by the petitioner under penalty of perjury. You must set forth CONCISELY (briefly and to the point) the answer to each question in the proper space on the form. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. 2. If you have more than 4 grounds for relief, you may attach pages with the remaining grounds; however, the format of the attached pages must be the same as the petition and you must provide only a statement of facts. No citation to legal authority is required. A brief or memorandum in support of the petition may also be attached; however, the form petition must be complete in itself and may not simply refer to the attachments. 3. Only one sentence, conviction, or parole matter may be challenged in a single petition. If you challenge more than one, you must do so by separate petition. 4. The fee to file a petition for writ of habeas corpus is $5.00, and you should submit the fee with your petition. If you do not have the necessary filing fee, you may request permission to proceed in which event you must complete and submit an Application to Proceed In Forma Pauperis, setting forth information establishing your inability to prepay the fees. You must have an authorized officer at the penal institution complete the certificate as to the amount of money on deposit to your credit in any account in the institution. You must also submit a certified copy of your trust account statement reflecting the prior 6 months of transactions. 5. When the petition is fully completed, must be mailed to the Clerk of the United States District Court. You must determine which court has venue (venue is the proper place — court/district/division — for the trial of a lawsuit). Depending on the nature of your case, venue may be determined by factors such as (1) location of the institution in which you are confined, (2) location of the trial court where judgment was entered, (3) location where events occurred, or (4) residence of the respondent(s). If you send your petition to a court lacking venue, your case may be dismissed, transferred to another court, or mailed back to you. 6. The Fresno Division of the United States District Court is comprised of the following counties: Fresno, Calaveras, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolomne, and the address is as follows: Clerk, United States District Court 2500 Tulare Street, Room 1501 Fresno, California 93721 The Sacramento Division of the United States District Court is comprised of the following counties: Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Sutter, Tehama, Trinity, Yolo, and Yuba, and the address is as follows: Clerk, United States District Court 501 "I" Street, Suite 4-200 Sacramento, California 95814 You should keep a copy of the petition for your records. 7. Once the petition is filed, the court will review it. You will be sent a copy of any order the court issues. Because of the large volume of cases filed by inmates pending in this court, the court WILL NOT ANSWER INQUIRIES concerning the status of your case. 8. You must keep the Clerk of the Court informed of any change of address. If you fail to do so, the Clerk cannot be responsible for your failure to receive Court orders. ( Local Rules 11-110 and 83-182(d)) 9. The Clerk of Court cannot provide copies of documents to litigants, except at a charge of fifty cents ($.50) per page. This charge also applies to litigants proceeding Therefore, you must keep copies of all documents submitted to the court for your own records. United States District Court EASTERN DISTRICT OF CALIFORNIA PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 BY A PERSON IN FEDERAL CUSTODY CAUTION: 28 U.S.C. § 2255 ____________________________ Name ____________________________ Prison Number ____________________________ ____________________________ ____________________________ Address or Place of Confinement Note: If represented by an attorney, write attorney's name, address telephone number __________________________________ CASE NO. ______________________________________ Full Name (First, Middle, Last) (to be supplied by the Clerk of the United States District Court) Petitioner, vs. __________________________________ Name of Warden (or other authorized person having custody of petitioner) Respondent. PLEASE COMPLETE THE FOLLOWING (check the appropriate number): This petition concerns: 1.___________ a conviction If you are attacking a federal conviction, 2.___________ a sentence sentence or judgment, you must 3.___________ jail or prison conditions first file a direct appeal or motion under 4.___________ prison discipline in the federal court which 5.___________ a parole problem entered judgment. 6.___________ other

PETITION

each FIRST APPEAL SECOND APPEAL GROUNDS FOR THIS 28 U.S.C. § 2241 PETITION CONCISELY every briefly facts CAUTION: GROUND ONE FACTS GROUND ONE BRIEFLY CAUTION: facts, not conclusions, GROUND TWO FACTS GROUND TWO BRIEFLY ADMINISTRATIVE APPEALS each FIRST ADMINISTRATIVE APPEAL SECOND ADMINISTRATIVE APPEAL THIRD ADMINISTRATIVE APPEAL FOURTH ADMINISTRATIVE APPEAL PREVIOUS PETITIONS 28 U.S.C. § 2241 28 U.S.C. § 2255, each FIRST PREVIOUS PETITION SECOND PREVIOUS PETITION in forma pauperis, (1) Place of detention:__________________________________________________________ (2) Name and location of court which imposed sentence:___________________________ _______________________________________________________________________________ (3) Offense(s) and indictment number(s) (if known) for the sentence imposed: _______________________________________________________________________________ _______________________________________________________________________________ (4) The date the sentence was imposed and the terms of the sentence: _______________________________________________________________________________ _______________________________________________________________________________ (5) What was your plea (check one): Not guilty ( ) Guilty ( ) Nolo contendere ( ) (6) Kind of trial (check one): Jury ( ) Judge only ( ) (7) Did you appeal from the judgment of conviction or the imposition of sentence: Yes ( ) No ( ) (8) If you did appeal, answer the following for appeal: : Name of court:_________________________________________________________________ Grounds raised (list each): 1) ________________________________________________________________ 2) ________________________________________________________________ Result/Date of result:_________________________________________________________ : Name of court:_________________________________________________________________ Grounds raised (list each): 1) ________________________________________________________________ 2) ________________________________________________________________ Result/Date of result: ________________________________________________________ (9) State ground on which you claim that your sentence is being executed in an illegal manner. Summarize the supporting each ground If you fail to set forth all grounds in this petition, you may be barred from presenting additional grounds at a later date. ____________________________________________________________________ _______________________________________________________________________________ Supporting for (tell your story without citing cases or law). You must state in support of your grounds. A rule of thumb to follow is — who did exactly what to violate your rights at what time or place. _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ ____________________________________________________________________ _______________________________________________________________________________ Supporting for (tell your story without citing cases or law). _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ (10) Have you presented the claims raised in Question #9 of this petition to prison officials in a prison administrations appeal? Yes ( ) No ( ) If your answer is no, explain why not:________________ ______________________________________________________ If your answer is yes, answer the following for administrative appeal: Level of appeal:___________________ Grounds raised (list each): 1) ________________________________________________________________ 2) ________________________________________________________________ Result/Date of result:_________________________________________________________ Level of appeal:___________________ Grounds raised (list each): 1) ________________________________________________________________ 2) ________________________________________________________________ Result/Date of result__________________________________________________________ Level of appeal:___________________ Grounds raised (list each): 1) ________________________________________________________________ 2) ________________________________________________________________ Result/Date of result:_________________________________________________________ Level of appeal:___________________ Grounds raised (list each): 1) ________________________________________________________________ 2) ________________________________________________________________ Result/Date of result:_________________________________________________________ (11) Is the grievance process completed? Yes ( ) No ( ) (12) Have you filed previous petitions for habeas corpus under or or any other applications, petitions or motions with respect to the claims raised in Question #9 of this petition? Yes ( ) No ( ) (13) If your answer to Question #12 was yes, give the following information for previous petition: Name of court:_________________________________________________________________ Nature of proceeding:__________________________________________________________ Grounds raised (list each): 1) ________________________________________________________________ 2) ________________________________________________________________ Result/Date of result:_________________________________________________________ Name of court:__________________________________________________________________ Nature of proceeding:___________________________________________________________ Grounds raised (list each): 1) ________________________________________________________________ 2) ________________________________________________________________ Result/Date of result:_________________________________________________________ (14) If the claims raised in Question #9 of this petition concern your conviction or sentence, explain why you are filing your petition pursuant to § 2241 instead of § 2255. _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ (15) Are you presently represented by counsel? Yes ( ) No ( ) If so, provide your attorney's name, address, and telephone number: _______________________________________________________________________________ _______________________________________________________________________________ (16) If you are seeking leave to proceed have you completed the application setting forth the required information? Yes ( ) No ( ) Note: If your answer is no, you must send a $5.00 filing fee to the court with your petition. WHEREFORE, petitioner prays that the court grant petitioner relief to which he may be entitled in this proceeding.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

_____________________________________ _________________________________ (Date) (Signature of Petitioner) _____________________________________ (Signature of Attorney, if any)