Turner v. Ponce

Full title: JOE LENZIE TURNER, Petitioner, v. FELICIA PONCE, Warden, Respondent.

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

Date published: Nov 10, 2015

2:15-cv-01758-GGH (E.D. Cal. Nov. 10, 2015)

Opinion

JOE LENZIE TURNER, Petitioner, v. FELICIA PONCE, Warden, Respondent. No. 2:15-cv-01758-GGH United States District Court, E.D. California. November 10, 2015

          ORDER

          GREGORY G. HOLLOWS, Magistrate Judge.

         Petitioner has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and paid the requisite filing fee. On October 7, 2015, the court ordered petitioner to show cause why the petition should not be dismissed for failure to show he is entitled to relief. ECF No. 7. The court explained that the petition seemed to allege petitioner's custody classification score was miscalculated, "adversely affect[ing] [his] custody level, housing, work assignments, level of supervision[, ] and eligibility for desirable activities." Id. at 2 (citing ECF No. 1 at Exhibit B). Such claims do not entitle petitioner to relief under § 2241 because they do not challenge the fact or duration of confinement. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 485 (1973). On November 2, 2015, petitioner submitted a response to the court's order to show cause explaining that his petition is, in fact, meant to challenge the duration of his confinement. ECF No. 8.¹ Petitioner contends that a prior state court conviction was improperly considered a prior sentence for purposes of calculating his criminal history points, delaying his projected release date. Id. at 1-2, 9-11.

1 Petitioner submitted a second response on November 5, 2015, that mirrors the first. ECF No. 9.

         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 accordance with the above, IT IS HEREBY ORDERED that:

         1. The court's October 7, 2015, order to show cause, ECF No. 7, is hereby discharged.

         2. Respondent is directed to file an answer or a motion to dismiss within sixty (60) 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 traverse, if any, is due on or before thirty (30) 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.