Thong Hoang v. Holder

• Decision Date: 13 November 2013
• Docket Number: Case No. 1:13-cv-01375-AWI-SKO-HC
• Parties: THONG HOANG, Petitioner, v. ERIC HOLDER, Attorney General, et al., Respondents.
• Court: U.S. District Court — Eastern District of California

THONG HOANG, Petitioner, v. ERIC HOLDER, Attorney General, et al., Respondents.

Case No. 1:13-cv-01375-AWI-SKO-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: November 13, 2013

FINDINGS AND RECOMMENDATIONS TO

DISMISS PETITIONER'S FIRST THREE

CLAIMS FOR LACK OF SUBJECT MATTER

JURISDICTION, TO DISMISS

PETITIONER'S FOURTH CLAIM WITHOUT

LEAVE TO AMEND, AND TO REFER THE

MATTER BACK TO THE MAGISTRATE JUDGE

FOR FURTHER PROCEEDINGS ON THE

REMAINING CLAIMS (DOC. 1)

OBJECTIONS DEADLINE:

THIRTY (30) DAYS

Petitioner is a federal prisoner proceeding pro se and in forma pauperis 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 through 304. Pending before the Court is the petition, which was filed on August 26, 2013.

I. Screening the Petition

The Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) are applied to 28 U.S.C. § 2241proceedings. Habeas Rule 1(b). Habeas Rule 4 requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). A petition for habeas corpus, however, should not be dismissed without leave to amend unless it appears that no tenableclaim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

Petitioner alleges he is an inmate of the Taft Correctional Institution (TCI) serving a sentence for narcotics trafficking with a probable release date of July 1, 2016. (Pet., doc. 1, 2.) Although Petitioner does not allege he is an alien, he alleges his crime has subjected him to imminent deportation. (Id.) Petitioner alleges he requested that the Bureau of Prisons (BOP) commence his deportation proceedings and complete the administrative process pursuant to 8 U.S.C. § 1228(a)(3)(A); however, the BOP failed to conduct deportation proceedings in a timely manner. Petitioner seeks an order directing the BOP to commence deportation proceedings, including a hearing, and to complete the administrative process within the time prescribed by statute before his release date. (Id. at 6.)

Petitioner has included a memorandum from the TCI warden dated August 1, 2013. In response to Petitioner's request for enforcement of 8 U.S.C. § 1228(a)(3), the warden states that Petitioner, against whom an Immigrations and Customs Enforcement (ICE) detainer has been lodged, is subject to a provision in § 1228(a)(3)(B) which should not be construed as requiring the Attorney General to effect the removal of any alien sentenced to actual incarceration before release from the penitentiary or correctional institution where the alien is confined. (Doc. 1, 8.) The warden further noted thatPetitioner's case was being monitored for his ultimate assignment to an institution at which immigration hearings are conducted, although no bed space was then available. (Id. at 9.)

Petitioner also alleges that only employees of the BOP or Federal Prison Industries, Inc., have authority to enforce federal law, including responding to Petitioner's request for the initiation and completion of deportation proceedings. (Id. at 10.) Petitioner alleges that Taft prison staff, including the warden, are employees of a private management corporation and thus lack legal authority to determine his placement; he contends a determination of his placement made by employees of a private corporation violated his right to due process of law. (Id.)

II. Absence of Subject Matter Jurisdiction pursuant to 28 U.S.C. § 2241

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).

A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000).

A. Custody

Habeas corpus relief extends to a person in custody under the authority of the United States if the petitioner can show he is "incustody 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 Bivens¹ 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 should have been construed as a petition for writ of habeas corpus pursuant to § 2241, but a claim seeking damages for civil rights violations should be construed 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); see, Greenhill v. Lappin, 376 Fed. Appx. 757, 757-58 (9th Cir. 2010) (unpublished) (appropriate remedy for a federal prisoner's claim that relates to the conditions of his confinement is a civil rights action under Bivens; but see, Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (habeas corpus available pursuant to § 2241 for claims concerning denial of good time credits and increased restrictions of liberty, such as disciplinary segregation, without due process of law); Cardenas v. Adler, 2010 WL 2180378 (No.1:09-cv-00831-AWI-JLT-HC, May 28, 2010) (petitioner's challenge to the constitutionality of the sanction of disciplinary segregation and his claim that the disciplinary proceedings were the product of retaliation by prison staff werecognizable in a habeas proceeding pursuant to § 2241).

In this district, claims concerning various prison conditions brought pursuant to § 2241 have been dismissed 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 (E.D.Cal. Sept. 2, 2010) (claim challenging placement in a special management housing unit in connection with a disciplinary violation); Burnette v. Smith, 2009 WL 667199 at *1 (E.D.Cal. Mar. 13, 2009) (petition seeking a transfer and prevention of retaliation by prison staff); Evans v. U.S. Penitentiary, 2007 WL 4212339 at *1 (E.D.Cal. Nov. 27, 2007) (claims brought pursuant to § 2241 regarding a transfer and inadequate medical care).

Petitioner asserts a statutory right pursuant to 8 U.S.C. § 1228(a)(3)(A) to have removal proceedings initiated, which he alleges was violated by Respondent's failure to designate Petitioner to be placed in an IHP hearing site, a designation that would permit the initiation of Petitioner's removal proceedings before his federal sentence expires. Petitioner contends that the failure to initiate removal proceedings will result in an increase in his federal sentence because his removal proceedings will not be completed before his sentence expires, and he will spend more time in custody than the statutory scheme governing immigration contemplates.

However, the length of Petitioner's present federal sentence will not be affected by the initiation of removal proceedings or the failure to initiate them; rather, it is the legality or duration of his future confinement pursuant to the authority of the ICE, which will commence after he completes his present sentence, that will beaffected. Petitioner, who has an ICE detainer pending against him, is not yet in the custody of the ICE for habeas corpus purposes because a bare detainer letter alone is insufficient to place an alien in ICE custody for the purpose of habeas corpus. Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995).

In sum, Petitioner is seeking to litigate the legality or duration not of his present confinement, but rather of possible or potential future confinement by the ICE. He is not in custody with respect to the ICE detainer, and thus he cannot show his present custody is unlawful.

Because of an absence of custody with respect to the immigration process, the Court lacks subject matter jurisdiction, and the petition should be dismissed.

B. Discretion of the BOP

The Court must determine whether it has jurisdiction to consider whether Petitioner's present conditions of confinement are contrary to federal law. See, e.g., Rodriguez v. Smith, 541 F.3d 1180, 1187 (9th Cir. 2008) (in habeas proceeding brought pursuant to § 2241, regulations concerning the BOP's discretionary placement decisions were invalid because they conflicted with the intent of Congress that underlies 18 U.S.C. §...