Lahigi v. Benov

• Decision Date: 12 February 2013
• Docket Number: 1:10-cv-02211-AWI-SKO-HC
• Court: U.S. District Court — Eastern District of California
• Parties: JAHANGIR LAHIGI, Petitioner, v. MICHAEL L. BENOV, Warden, Respondent.

JAHANGIR LAHIGI, Petitioner,

v.MICHAEL L. BENOV, Warden, Respondent.

1:10-cv-02211-AWI-SKO-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: February 12, 2013

FINDINGS AND RECOMMENDATIONS TO

DISMISS THE PETITION IN PART,

DENY THE PETITION IN PART, AND

ENTER JUDGMENT FOR RESPONDENT

(DOC. 1)

OBJECTIONS DEADLINE:

THIRTY (30) DAYS AFTER SERVICE

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on November 29, 2010. Respondent filed a response to the petition on April 22, 2011, with supporting documentation. Petitioner filed a traverse on May 10, 2011.

I. Background

Petitioner is a citizen of Iran who is presently serving aprison sentence at the Taft Correctional Institution (TCI) after having been convicted of the federal offense of importation of opium and sentenced on September 21, 2009, to seventy-two (72) months in prison. Petitioner alleges that his release date is November 22, 2013; Respondent's records reflect a date of December 5, 2013. (Pet., doc. 1, 3-4; att. A, doc. 15, 3; ex. 1A, doc. 15 at 10.)

Petitioner was designated by staff of the Bureau of Prisons (BOP) to TCI on November 6, 2009. (Ans., att. A, doc 15, 3.) The declaration of Cory Clark, a Senior Designator at the Designation and Sentence Computation Center (DSCC) of the BOP, establishes that the designation was made pursuant to 18 U.S.C. § 3621(b), which authorizes the BOP to classify and designate an inmate to the most appropriate facility after considering various factors. (Id. at 4.) In Petitioner's case, the factors considered included security level, programming needs, judicial recommendations, release residence, levels of overcrowding, central inmate monitoring issues, and Petitioner's status as an alien. (Id.)

With jail credits, Petitioner had only approximately sixty (60) months left to serve at the time his was designated to TCI. He was not designated to an institution that was also a hearing site pursuant to the Institution Hearing Program (IHP)¹ becausethere were no beds available at institutions that were IHP hearing sites either at the time of Petitioner's designation to TCI or thereafter in April 2011 when Clark made his declaration. (Id. at 4, 6.)² The reason for this was the high number of criminal aliens with federal convictions and the extent of the case backlog that ICE had with respect to hearings. (Id. at 6.)

Thus, instead of placing Petitioner at an institution that was an IHP hearing site, the BOP designated Petitioner to TCI because it was a contract detention center close to immigration offices where his deportation status could be finalized before or at the time of his release from service of his federal criminal sentence. (Id. at 4-5.) Clark confirmed that as of December 3, 2009, Petitioner had the appropriate designation that would ensure monitoring of his case and transfer if possible, namely, "IHP PEND." (Id. at 7, ex. 4, doc. 15-2 at 10.)

On March 17, 2010, Petitioner informed BOP staff that on January 19, 2010, a detainer had been filed against him for possible deportation by the Bureau of Immigration and Customs Enforcement of the United States Department of Homeland Security. (Id. at 10.) Petitioner requested transfer to an immigration hearing site in accordance with the IHP so removal proceedingscould be instituted, and, to the extent possible, completed (including any administrative appeals) before his release from incarceration for his underlying aggravated felony. (Id.) Petitioner's request was denied because given the lack of any bed space available at the BOP's IHP hearing sites, the BOP was no longer processing transfers for the purpose of IHP hearings. (Id.)

On March 19, 2010, in an attempt at informal resolution within the BOP, Petitioner repeated his request. (Id. at 9.) A BOP counselor again denied the request because of the absence of any bed spaces available and the resulting cessation of processing of such transfer requests. (Id.) Petitioner continued seeking an administrative remedy. The warden denied Petitioner's request on March 24, 2010, reasoning that pursuant to BOP Program Statement 5100.08, the issue of transfers was entrusted to the discretion of the warden and the DSCC; Petitioner's security needs, current offense, disciplinary history, release destination, and detainers were considered in addition to population pressures, but because there was no bed space available at the IHP hearing sites, transfer requests such as Petitioner's were no longer being processed. (Id. at 11-12.) Petitioner's appeal of the warden's denial was unsuccessful because it was determined that the warden had adequately addressed Petitioner's request. (Id. at 14.)

Petitioner attached to his petition a copy of a portion of a Taft Correctional Institution Statement of Work which provides that the low security institution was designated as a release site with 275 beds for inmates participating in the InstitutionHearing Program (IHP). (Id. at 16.)

In this proceeding, Petitioner claims his statutory right to initiate removal proceedings based on 8 U.S.C. § 1228(a)(3)(A), and supported by BOP Program Statements 5111.01 and 5111.04, was violated by Respondent when Respondent failed to designate Petitioner to be placed in an IHP hearing site, which would permit the initiation of Petitioner's removal proceedings before his federal sentence expires. Petitioner contends this will result in a de facto increase in his sentence because due to his failure to be designated to a hearing site, his removal proceedings will not or cannot be completed before his sentence expires. (Id.) Thus, he will spend more time in custody than the statutory scheme governing immigration contemplates. Petitioner requests an order directing Respondent to take appropriate steps to transfer him to an IHP hearing site to commence his removal proceedings and to complete the process in the time prescribed by Congress or before Petitioner's release from incarceration. (Id. at 5.)

II. Absence of Subject Matter Jurisdiction

Respondent argues that the petition should be dismissed based on lack of jurisdiction.

Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). The scope of habeas review under § 2241 extends to both constitutional and statutory questions as well as to claims brought under the doctrine of equitable estoppel. Barapind v.Reno, 225 F.3d 1100, 1110 (9th Cir. 2000).

Although a federal prisoner who challenges the validity or constitutionality of his conviction must file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255, a federal prisoner challenging the manner, location, or conditions of the execution of a sentence must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000).

A. Legality or Duration of Confinement

Respondent contends that the petition should be dismissed in part because Petitioner's claim does not have the ability to affect the legality or duration of Petitioner's confinement.

Relief by way of a writ of habeas corpus extends to a person in custody under the authority of the United States if the petitioner can show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(1) & (3). A habeas corpus action is the proper mechanism for a prisoner to challenge the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990) (holding in a Bivens³ action that a claim that time spent serving a state sentence should have been credited against a federal sentence concerned the fact or duration of confinement and thus should have been construed as a petition for writ of habeas corpus pursuant to § 28 U.S.C. § 2241, but to the extent the complaint sought damages for civil rights violations, it should beconstrued as a Bivens action); Crawford v. Bell, 599 F.2d 890, 891-892 (9th Cir. 1979) (upholding dismissal of a petition challenging conditions of confinement and noting that the writ of habeas corpus has traditionally been limited to attacks upon the legality or duration of confinement); and see, Greenhill v. Lappin, 376 Fed. Appx. 757, 757-58 (9th Cir. 2010) (unpublished) (holding that the appropriate remedy for a federal prisoner's claim that relates to the conditions of his confinement is a civil rights action under Bivens). Claims concerning various prison conditions that have been brought pursuant to § 2241 have been dismissed in this district for lack of subject matter jurisdiction with indications that an action pursuant to Bivens is appropriate. See, e.g., Dyson v. Rios, 2010 WL 3516358, *3 (No. 1:10-cv-00382-DLB (HC), E.D.Cal. Sept. 2, 2010) (challenge to placement in a special management housing unit in connection with a disciplinary violation); Burnette v. Smith, 2009 WL 667199 at *1 (No. CIV S-08-2178 DAD P, E.D.Cal. Mar. 13, 2009) (a petition seeking a transfer and prevention of retaliation by prison staff); Evans v. U.S. Penitentiary, 2007 WL 4212339 at *1 (No. 1:07-CV-01611 OWW GSA HC, E.D.Cal. Nov. 27, 2007) (claims brought pursuant to § 2241 regarding a transfer and inadequate medical care).

Here, Petitioner seeks an order directing his transfer so his removal proceedings may begin or even be completed by the time he has fully served his criminal sentence. Petitioner thus seeks to affect not the legality or duration of his present confinement pursuant to his federal sentence, but rather the amount of time he will be subject to confinement thereafterpursuant to the...