Opinion
No. CIV S-08-1826 GGH P.
October 27, 2008
ORDER
Petitioner has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, together with a request to proceed in forma pauperis.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted.See 28 U.S.C. § 1915(a).
Petitioner alleges that the United States Bureau of Prisons (BOP) regulations providing that he may spend only 10% of his sentence in a half way house are invalid. Since petitioner may be entitled to the requested relief if the claimed violation of constitutional rights is proved, respondent will be directed to file an answer or a motion to dismiss.
In the response, respondent shall address whether petitioner's claim challenges the legality of his sentence or the execution of his sentence. If petitioner challenges the legality of his sentence, then his claims should have been raised in a motion to vacate, set aside or correction his sentence pursuant to 28 U.S.C. § 2255 before the sentencing court. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). If petitioner is truly challenging the execution of his sentence, then his claims are properly brought in a petition pursuant to § 2241 in this court. Id.
In the petition, petitioner may also be challenging his conditions of confinement. Any claims by petitioner challenging his conditions of confinement should be raised in a Bivens action. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971). These claims will not be addressed in the instant action.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's request to proceed in forma pauperis is granted;
2. Respondent is directed to file an answer or a motion to dismiss within sixty days from the date of this order. If an answer is filed, respondent shall include with the answer any and all transcripts or other documents relevant to the determination of the issues presented in the application.
3. Petitioner's reply if any, is due on or before thirty days from the date respondent's answer is filed; an opposition to a motion to dismiss is due within thirty days of service of the motion to dismiss;
4. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on the United States Attorney.