Cenobio H. Herrera Sr. v. Warden

• Court: District Court, C.D. California
• Decided: February 21, 2023
• Docket: 2:23-cv-01162
• Status: Unknown

Opinion

Case 2:23-cv-01162-DSF-JDE Document 4 Filed 02/21/23 Page 1 of 10 Page ID #:9

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 CENOBIO H. HERRERA, SR., ) Case No. 2:23-cv-01162-DSF-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE WHY 13 v. ) ) THE PETITION SHOULD NOT BE 14 WARDEN OF FCI LOMPOC, ) ) DISMISSED ) 15 Respondent. ) ) 16 ) ) 17

18 19 I. 20 INTRODUCTION 21 On February 14, 2023, Petitioner Cenobio H. Herrera, Sr. (Lanz) 22 (“Petitioner”), a federal prisoner at the Federal Correctional Institution in 23 Lompoc, California, proceeding pro se and without paying the required filing 24 fee or seeking leave to proceed in forma pauperis, filed a one-page “Petition for 25 a Writ of Habeas Corpus 28 U.S.C. § 2241,” seeking an order directing the 26 Federal Bureau of Prisons (“BOP”) to “Apply My First Step Act Credits 27 (“FSA”), Elderly Offender Credit, And Good Time Credits (“GTC”).” Dkt. 1 28 (“Petition” or “Pet.”). Petitioner was previously deemed a vexatious litigant, Case 2:23-cv-01162-DSF-JDE Document 4 Filed 02/21/23 Page 2 of 10 Page ID #:10

1 and by prior order, is required to obtain a court order or written authorization 2 to proceed with certain actions. See United States v. Herrera, et al., Case No. 3 2:02-cr-00531-RSWL (C.D. Cal.) (“Underlying Action”), Dkt. 447. The 4 Petition has been referred to the undersigned magistrate judge for preliminary 5 review and consideration. 6 A habeas petition brought under 28 U.S.C. § 2241 is subject to the same 7 screening requirements that apply to habeas petitions brought under 28 U.S.C. 8 § 2254. See Rules Governing Section 2254 Cases in the United States District 9 Courts, 28 U.S.C. § 2254 (“Habeas Rules”), Habeas Rule 1(b) (providing that 10 district courts may apply the Habeas Rules to habeas petitions that are not 11 brought under § 2254); Lane v. Feather, 584 F. App’x 843, 843 (9th Cir. 2014) 12 (affirming district court’s application of Habeas Rule 4 to dismiss a Section 13 2241 petition). Accordingly, pursuant to Rule 4 of the Habeas Rules, the Court 14 is required to “promptly examine” the Petition and, “[i]f it plainly appears 15 from the petition and any attached exhibits that the petitioner is not entitled to 16 relief,” the Court “must dismiss the petition.” 17 The undersigned has reviewed the Petition under Rule 4 of the Habeas 18 Rules and finds the Petition is subject to dismissal for the reasons explained 19 below. 20 II. 21 PROCEDURAL HISTORY 22 In March 2003, following a jury trial, Petitioner was convicted of 23 conspiracy to aid and abet manufacturing of methamphetamine and to possess 24 pseudoephedrine knowing and having reasonable cause to believe it would be 25 used to manufacture methamphetamine, in violation of 21 U.S.C. §§ 846, 26 841(a)(1), 841(C)(2), and 18 U.S.C. § 2; two counts of possession of 27 pseudoephedrine knowing and having reasonable cause to believe it would be 28 used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2); 2 Case 2:23-cv-01162-DSF-JDE Document 4 Filed 02/21/23 Page 3 of 10 Page ID #:11

1 conspiracy to money launder, in violation of 18 U.S.C. §§ 1956(h), 1956(a)(1), 2 and 1957; and several counts of laundering of monetary instruments, aiding 3 and abetting, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and 18 U.S.C. § 2. 4 Underlying Action, Dkt. 130, 133, 182-183.1 In December 2003, Petitioner was 5 sentenced to 360 months of incarceration. Pet. at 1; Underlying Action, Dkt. 6 182-183. Petitioner appealed the judgment, which was affirmed in part and 7 remanded in part by the Ninth Circuit Court of Appeals on January 23, 2007. 8 United States v. Herrera, Case No. 04-50000 (9th Cir.), Dkt. 92. A petition for 9 rehearing was denied on February 26, 2007. Id., Dkt. 100. 10 On August 28, 2009, Petitioner filed a motion under 28 U.S.C. § 2255 to 11 vacate, set aside, or correct the sentence. Underlying Action, Dkt. 341. On 12 October 16, 2009, Petitioner voluntarily dismissed this motion, entered by the 13 district court on December 23, 2009. Id., Dkt. 362, 372. Petitioner filed a 14 second motion under Section 2255 on December 20, 2011, which was denied 15 on January 17, 2013. Id., Dkt. 403, 412. 16 In July 2011, Petitioner filed a Section 2241 petition, which was 17 dismissed because his claims were not cognizable in a federal habeas petition. 18 See Herrera, Sr. v. Sanders, Case No. 2:11-cv-06196-RSWL-MAN (C.D. Cal.), 19 Dkt. 1, 3-4. Less than a month later, Petitioner filed another habeas petition 20 under Section 2241 challenging a restitution order. Herrera, Sr. v. Sanders, 21 Case No. 2:11-cv-06486-RSWL-MAN (C.D. Cal.), Dkt. 1. That petition was 22 dismissed with prejudice on October 1, 2012. Id., Dkt. 15. A third habeas 23 petition under Section 2241 was “essentially a re-hash” of his first habeas 24 1 The Court takes judicial notice of the relevant federal records available 25 electronically. See United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 26 2018) (“A court may take judicial notice of undisputed matters of public record, which may include court records available through [the Public Access to Court 27 Electronic Records].”); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking 28 judicial notice of opinion and briefs filed in another proceeding). 3 Case 2:23-cv-01162-DSF-JDE Document 4 Filed 02/21/23 Page 4 of 10 Page ID #:12

1 petition and dismissed without prejudice on February 8, 2012. See Herrera, Sr. 2 v. Sanders, 2:12-cv-00976-JSL-MAN (C.D. Cal.), Dkt. 1, 3, 4. 3 Meanwhile, on October 10, 2013, Petitioner was declared a vexatious 4 litigant, with the District Judge finding Petitioner had an “extensive history of 5 frivolous litigation” in the Underlying Action, raising “patently meritless 6 positions.” Underlying Action, Dkt. 447 (“Vexatious Litigant Order”) at 6, 10, 7 13-14. Under the Vexatious Litigant Order, Petitioner is prohibited from filing 8 documents that: 9 (1) contest the jurisdiction of this Court over his conviction, (2) is a 10 non-motion or contract-style filing such as, but not limited to, a 11 Notice, Covenant, Warrant, Offer of Proof, Conditional 12 Acceptance, Waiver of Tort, Presentment, Letter, Claim for 13 Damage or Injury, or similar filings which reference tort claims, 14 non-corporate status, debtors, interpleaders, damages, property 15 claims, chattel, contracts, agents, principals, or rescission, or (3) 16 without obtaining the prior approval of the Ninth Circuit Court of 17 Appeals, request relief which would be appropriately addressed 18 pursuant to 28 U.S.C. § 2255. 19 Vexatious Litigant Order at 13-14. On July 28, 2014, the Ninth Circuit 20 affirmed the Vexatious Litigant Order. Underlying Action, Dkt. 454. 21 Since that time, Petitioner has continued to seek release. For instance, 22 on April 22, 2019, Petitioner filed a request for sentence reduction pursuant to 23 18 U.S.C. § 3582(c)(1)(B) based on the First Step Act of 2018 and Amendment 24 782 to the Sentencing Guidelines. Underlying Action, Dkt. 486. On July 29, 25 2019, the district court denied the motion pursuant to the First Step Act (id., 26 Dkt. 492), and denied the motion as to Amendment 782 on October 10, 2019. 27 Id., Dkt. 502. On January 23, 2020, Petitioner filed another motion to reduce 28 sentence pursuant to Section 3582(c), which was denied on April 24, 2020. Id., 4 Case 2:23-cv-01162-DSF-JDE Document 4 Filed 02/21/23 Page 5 of 10 Page ID #:13

1 Dkt. 511, 536. Petitioner, through counsel, filed a renewed motion for 2 compassionate release on May 18, 2020, which was denied on August 10, 3 2020. Id., Dkt. 546, 557. That decision was affirmed by the Ninth Circuit on 4 June 29, 2021. Id., Dkt. 562. On March 4, 2022, Petitioner filed another 5 motion to reduce sentence pursuant to the First Step Act and 18 U.S.C. § 3585, 6 which was denied on May 9, 2022. Id., Dkt. 570, 582. On October 12, 2022, 7 Petitioner filed another motion for reduction of sentence in the Underlying 8 Action, which was denied on February 7, 2023. Id., Dkt. 595, 617. 9 On October 21, 2022, Petitioner filed another habeas petition under 28 10 U.S.C. § 2241, seeking release on home confinement under the Coronavirus 11 Aid, Relief, and Economic Security (CARES) Act, and asserting alleged 12 failures to comply with an injunction in another action and inadequate medical 13 care, which was dismissed on January 18, 2023. See Herrera, Sr. v. Birkholz, 14 Case No. 2:22-cv-07784-RSWL-JDE (C.D. Cal.), Dkt. 10 (Report and 15 Recommendation of Assigned Magistrate Judge recommending dismissal), 16 Dkt. 11 (Order Accepting Report and Recommendation, dismissing action), 17 Dkt. 12 (Judgment of Dismissal). Petitioner also recently had a civil rights 18 complaint dismissed. Herrera, Sr. v. US Attorney California-Central, Case No. 19 2:22-cv-04245-GW-AGR (C.D. Cal.), Dkt. 18 (Order of Dismissal dated 20 January 19, 2023). 21 As noted, the Court received the instant Petition on February 14, 2023. 22 III. 23 SUMMARY OF THE PETITION 24 In the one-page Petition, Petitioner appear to argue that the BOP 25 wrongfully denied him certain credits toward early release under the First Step 26 Act, the “Elderly Offender Credit” and “Good Time Credits” due to Petitioner 27 having been found to be a “leader/organizer of criminal activity,” which 28 Petitioner asserts, is a “made up policy of the BOP as [the First Step Act], 5 Case 2:23-cv-01162-DSF-JDE Document 4 Filed 02/21/23 Page 6 of 10 Page ID #:14

1 Elderly Offender Credit and the [Good Time Credits] has no such rule within 2 the statutes.” Pet. at 1. Petitioner also argues that the BOP is “reneging in 3 accepting [his] officially given documents from the Department of Defense” 4 which, Petitioner argues, recognize that he is a United States citizen as a result 5 of his military service in combat, and asks the Court to “recognize” his status. 6 In conclusion, Petitioner asks the Court to order the BOP “to apply [his] [First 7 Step Act], Elder Offender Credits, [his] [Good Time Credits] as statutorily 8 required, and the fact that the Department of Defense granted [his] full 9 citizenship of the United States which [he] earned back in the year 1966, as 10 was done officially.” Id. 11 IV. 12 DISCUSSION 13 A petition for writ of habeas corpus may lie under 28 U.S.C. 14 § 2241(c)(3), subject to other limitations, if the petitioner “is in custody in 15 violation of the Constitution or laws or treaties of the United States.” Here, 16 Petitioner does not challenge the lawfulness of his underlying conviction or 17 sentence. Rather, Petitioner asks the Court to order the BOP to “apply” certain 18 credits to which Petitioner contends he is entitled. The Petition appears to 19 suffer from at least two defects. 20 First, Petitioner has not clearly set forth the grounds that plausibly 21 suggest entitlement to relief. Habeas Rules 2(c) and 4 require a statement of all 22 grounds for relief and the facts supporting each ground; the petition should 23 state facts that point to a real possibility of error and show the relationship of 24 the facts to the claim. See Habeas Rule 4, Advisory Committee Notes to 1976 25 Adoption; Mayle v. Felix, 545 U.S. 644, 655 (2005); O’Bremski v. Maass, 915 26 F.2d 418, 420 (9th Cir. 1990) (as amended). Allegations in a petition that are 27 vague, conclusory, palpably incredible, or unsupported by a statement of 28 specific facts, are insufficient to warrant relief, and are subject to summary 6 Case 2:23-cv-01162-DSF-JDE Document 4 Filed 02/21/23 Page 7 of 10 Page ID #:15

1 dismissal. See, e.g., Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); 2 James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); Hendricks v. Vasquez, 908 F.2d 3 490, 491 (9th Cir. 1990). 4 Here, the Petition asserts the BOP erroneously denied Petitioner certain 5 benefits under three alleged statutory or administrative schemes, that is, the 6 First Step Act, Elder Offender Credit, and Good Time Credits, based on the 7 BOP’s finding that Petitioner was an organizer or leader in his underlying 8 criminal conduct. But Petitioner does not describe the applicable programs, the 9 alleged denials of relief, or any proceedings that led to the alleged wrongful 10 denials of benefits. Indeed, to the extent Petitioner is seeking relief under the 11 First Step Act’s elderly offender reunification provision, as Petitioner has been 12 repeatedly advised, 34 U.S.C. § 60541(g) grants the Attorney General, not the 13 courts, discretion to release eligible elderly offenders, and as such, the Court 14 cannot grant relief under this statute. See, e.g., United States v. Herrera, 2022 15 WL 1488033, at *2 (C.D. Cal. May 9, 2022) (explaining that “this statute does 16 not empower the Court to release [Petitioner] as an elderly offender”); United 17 States v. Herrera, 2019 WL 3428835, at *1 (C.D. Cal. July 29, 2019) 18 (explaining that “the Court is not in a position to adjust his sentence or the 19 method of his imprisonment since the ‘statute merely grants the Attorney 20 General discretion to release eligible elderly offenders’”). Petitioner also claims 21 the BOP “reneg[ed] in accepting [his] officially given documents from the 22 Department of Defense, attached as exhibits, whereby [he is] fully recognized 23 as a United States citizen . . . .” Not only has Petitioner failed to attach the 24 referenced documents, he provides no explanation how this has “prevent[ed]” 25 him from receiving “the appropriate earned benefits.” The one-page Petition is 26 wholly conclusory and vague as to the bases for the alleged claims. As such, 27 the Petition is subject to dismissal. 28 7 Case 2:23-cv-01162-DSF-JDE Document 4 Filed 02/21/23 Page 8 of 10 Page ID #:16

1 Second, “[a]s a prudential matter, courts require that habeas petitioners 2 exhaust all available judicial and administrative remedies before seeking relief 3 under [28 U.S.C.] § 2241.” Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 4 2012). Exhaustion aids “judicial review by allowing the appropriate 5 development of a factual record in an expert forum; conserve[s] the court’s 6 time because of the possibility that the relief applied for may be granted at the 7 administrative level; and allow[s] the administrative agency an opportunity to 8 correct errors occurring in the course of administrative proceedings.” Ruviwat 9 v. Smith, 701 F.2d 844, 845 (9th Cir. 1983) (per curiam). As the requirement is 10 not a “jurisdictional prerequisite,” courts have discretion to waive the 11 requirement in Section 2241 cases. Ward, 678 F.3d at 1045 (citation omitted); 12 Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004). Courts may waive the 13 requirement where administrative remedies are inadequate or not efficacious, 14 pursuit would be futile, irreparable injury will result, or the administrative 15 proceedings would be void. See Ward, 678 F.3d at 1045; Laing, 370 F.3d at 16 1000. 17 Here, it appears from the face of the Petition that Petitioner has failed to 18 exhaust his administrative remedies as he argues that the exhaustion 19 requirement is “no longer . . . a jurisdictional requirement in a 2241 20 proceeding.” Pet. at 1. As set forth above, the Court agrees that exhaustion is 21 not a jurisdictional prerequisite; nonetheless, the Court sees no reason to 22 excuse exhaustion here as Petitioner does not allege that such remedies are 23 inadequate or that requiring pursuit of administrative remedies would futile, 24 cause irreparable injury, or would be void. See Ward, 678 F.3d at 1045; Laing, 25 370 F.3d at 1000. To the contrary, judicial review of Petitioner’s claims, based 26 on three different administrative and/or statutory schemes (the First Step Act, 27 the “Elderly Offender Credit,” and BOP Good Time Credits), would be aided 28 “by allowing the appropriate development of a factual record in an expert 8 Case 2:23-cv-01162-DSF-JDE Document 4 Filed 02/21/23 Page 9 of 10 Page ID #:17

1 forum; [would] conserve the court’s time because of the possibility that the 2 relief applied for may be granted at the administrative level; and [would] allow 3 the administrative agency an opportunity to correct errors in the course of 4 administrative proceedings.” Ruviwat, 701 F.2d at 845. Other than noting 5 exhaustion is not a jurisdictional prerequisite, Petitioner does not provide an 6 explanation as to why the exhaustion requirement should be waived in this 7 case. His cursory argument that “it is a BOP policy that Unit Team has said I 8 connot change, hence, administrative remedies is not available and no forms 9 were given to me to grieve this policy” (Pet. at 1) lacks specific factual support 10 and as such, is insufficient to demonstrate exhaustion would be futile here. 11 Therefore, the Petition is subject to dismissal for failure to exhaust 12 administrative remedies. 13 V. 14 ORDER 15 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 16 is ORDERED TO SHOW CAUSE, in writing, by no later than twenty-one 17 (21) days from the date of this Order, why this action should not be dismissed 18 under Habeas Rule 4 for the reasons stated above. To the extent Petitioner 19 contends he has exhausted his administrative remedies, Petitioner is directed to 20 provide information regarding his efforts to exhaust his claims and attach 21 copies of any documents establishing that his claims are indeed exhausted. If 22 Petitioner claims exhaustion of his administrative remedies should be waived, 23 he shall set forth in detail the facts supporting this contention. 24 If, after review of this Order, Petitioner should decide not to further 25 pursue this action at this time, Petitioner may voluntarily dismiss the action by 26 filing a Notice of Dismissal in accordance with Federal Rule of Civil 27 Procedure 41(a)(1). The Clerk is directed to send Petitioner a Central District 28 Request for Dismissal form. 9 ase 2:23-cv-01162-DSF-JDE Document4 Filed 02/21/23 Page 10o0f10 Page ID#:1

1 Petitioner is cautioned that a failure to respond timely in compliance 2 || with this Order could result in this action being dismissed for the foregoing 3 ||reasons, for failure to prosecute, and for failure to comply with a Court order. 4 || See Fed. R. Civ. P. 41(b). Dated: February 21, 2023 6 N D. EARLY 7 nited States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10