Austion v. Withers

• Court: District Court, D. Nevada
• Decided: March 28, 2024
• Docket: 2:24-cv-00579
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JASMINE BENARD AUSTION, Case No. 2:24-cv-00579-GMN-MDC 4 Petitioner, DISMISSAL ORDER 5 v.

6 SHANON D. WITHERS, et al.,

7 Respondents.

9 Pro se Petitioner Jasmine Benard Austion has filed a Petition for a Writ of Habeas Corpus 10 under 28 U.S.C. § 2241, challenging how his sentence in his federal criminal case1 is being carried 11 out, calculated, or credited by prison or parole authorities. (ECF No. 1-1 (“Petition”).) 12 Specifically, Austion is disputing an incident that took place at the prison which resulted in him 13 losing good-time credits. (Id. at 2.) This Court dismisses the Petition because (1) it has been 14 improperly commenced and (2) this Court lacks jurisdiction. 15 16 I. DISCUSSION 17 Austion has not properly commenced this action by filing an in forma pauperis (“IFP”) 18 application and or paying his filing fee. Pursuant to 28 U.S.C. § 1914(a) and the Judicial 19 Conference Schedule of Fees, a $5.00 filing fee is required to initiate a habeas action in a federal 20 district court. This Court may authorize an indigent prisoner to begin a habeas action without 21 1In his federal criminal case, case number 2:22-cr-00010-JAD-MDC-1, Austion was sentenced to 22 three concurrent terms of 135 months. It appears that Austion recently filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 and a Motion for Sentence Reduction in 23 case number 2:22-cr-00010-JAD-MDC-1. 1 paying the $5 fee if he or she submits an IFP application on the approved form and includes three 2 specific documents: (a) the prisoner’s financial declaration and acknowledgement showing an 3 inability to prepay fees and costs, (b) a financial certificate signed by the prisoner and an authorized 4 prison official, and (c) a copy of the prisoner’s account statement for the six-month period prior to

5 filing. 28 U.S.C. § 1915(a); LSR 1-1, LSR 1-2. 6 Further, this Court lacks jurisdiction over this case. Federal district courts may grant a writ 7 of habeas corpus when a petitioner is “in custody in violation of the Constitution or laws or treaties 8 of the United States.” 28 U.S.C. § 2241(c)(3). Section 2241 provides, in relevant part, “Writs of 9 habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and 10 any circuit judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The United States 11 Supreme Court has explained that the phrase “within their respective jurisdictions” in § 2241 12 “require[s] the presence of the prisoner within the territorial jurisdiction of the District Court as a 13 prerequisite to his filing of application for habeas corpus.” United States v. Hayman, 342 U.S. 205, 14 220 (1952). The Ninth Circuit has further explained that when a petitioner and his custodian are

15 “within the territorial jurisdiction of the district court at the time the petition for writ of habeas 16 corpus [is] filed, the district court [has] jurisdiction to determine the merits of the litigation.” Smith 17 v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971). In his Petition, Austion states that he is currently 18 confined at United States Penitentiary Coleman 1 in Sumterville, Florida.2 (ECF No. 1-1 at 1.) 19 Accordingly, neither Austion nor his custodian were within the territorial jurisdiction of the 20 District of Nevada on the date the Petition was filed. 21 22

23 2Notably, USP Coleman 1 appears to be within the jurisdiction of the United States District Court for the Middle District of Florida. 1} TI. CONCLUSION 2 It is therefore ordered that the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (ECF No. 1-1) is dismissed with prejudice. Austion is denied a Certificate of Appealability, as 4|| jurists of reason would not find dismissal of the Petition for the reasons delineated in this Order to be debatable or wrong. 6 It is further ordered that the Clerk of Court (1) file the Petition (ECF No. 1-1), (2) enter 7| final Judgment dismissing this action with prejudice, and (3) close this case. 8 Dated: March 28, 2024 Gl 10 Z {TU oa . Navarro, Judge 11 Un tates District Court 12 13 14 15 16 17 18 19 20 21 22 23