Cenobio H. Herrera Sr. v. Warden

Opinion

Case 2:23-cv-01162-DSF-JDE Document 6 Filed 02/23/23 Page 1 of 10 Page ID #:25

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, ) ) AMENDED ORDER TO SHOW 13 v. ) ) CAUSE WHY THE PETITION 14 WARDEN OF FCI LOMPOC, ) ) SHOULD NOT BE DISMISSED ) 15 Respondent. ) ) 16 ) ) 17

18 19 I. 20 INTRODUCTION 21 On February 14, 2023, the Court received from Petitioner Cenobio H. 22 Herrera, Sr. (Lanz) (“Petitioner”), a federal prisoner at the Federal 23 Correctional Institution in Lompoc, California, proceeding pro se and without 24 paying the required filing fee or seeking leave to proceed in forma pauperis, a 25 one-page “Petition for a Writ of Habeas Corpus 28 U.S.C. § 2241,” seeking an 26 order directing the Federal Bureau of Prisons (“BOP”) to “Apply My First 27 Step Act Credits (“FSA”), Elderly Offender Credit, And Good Time Credits 28 (“GTC”).” Dkt. 1 (“First Petition”). Petitioner was previously deemed a Case 2:23-cv-01162-DSF-JDE Document 6 Filed 02/23/23 Page 2 of 10 Page ID #:26

1 vexatious litigant, and by prior order, is required to obtain a court order or 2 written authorization to proceed with certain actions. See United States v. 3 Herrera, et al., Case No. 2:02-cr-00531-RSWL (C.D. Cal.) (“Underlying 4 Action”), Dkt. 447. The Petition has been referred to the undersigned 5 magistrate judge for preliminary review and consideration. 6 On February 21, 2023, the Court issued an Order to Show Cause Why 7 the First Petition should not be dismissed, directing Petitioner to respond in 8 writing within 21 days. Dkt. 4 (“First Order”). Separately, on February 15, 9 2023, the Court received a nearly identical version of the First Petition, with 10 the name “Brian Birkholz” added after “Warden of FCI Lompoc” on the 11 caption as Respondent, a new notation “Emergency Under Necessity” in the 12 title,“[Nunc Pro Tunc]” added below the date, and two pages of largely 13 illegible attachments, although the document was not added to the docket until 14 February 23, 2023. Dkt. 5 (“Petition” or “Pet.”). The Court interprets the filing 15 at Dkt. 5 as Petitioner’s intended operative Petition and the Court treats it as 16 the operative Petition. As such, with Dkt. 5 as Petitioner’s operative Petition, 17 the Court vacates the First Order, but instead replaces it with this Order. 18 A habeas petition brought under 28 U.S.C. § 2241 is subject to the same 19 screening requirements that apply to habeas petitions brought under 28 U.S.C. 20 § 2254. See Rules Governing Section 2254 Cases in the United States District 21 Courts, 28 U.S.C. § 2254 (“Habeas Rules”), Habeas Rule 1(b) (providing that 22 district courts may apply the Habeas Rules to habeas petitions that are not 23 brought under § 2254); Lane v. Feather, 584 F. App’x 843, 843 (9th Cir. 2014) 24 (affirming district court’s application of Habeas Rule 4 to dismiss a Section 25 2241 petition). Accordingly, pursuant to Rule 4 of the Habeas Rules, the Court 26 is required to “promptly examine” the Petition and, “[i]f it plainly appears 27 from the petition and any attached exhibits that the petitioner is not entitled to 28 relief,” the Court “must dismiss the petition.” 2 Case 2:23-cv-01162-DSF-JDE Document 6 Filed 02/23/23 Page 3 of 10 Page ID #:27

1 The undersigned has reviewed the Petition under Rule 4 of the Habeas 2 Rules and finds the Petition is subject to dismissal for the reasons explained 3 below. 4 II. 5 PROCEDURAL HISTORY 6 In March 2003, following a jury trial, Petitioner was convicted of 7 conspiracy to aid and abet manufacturing of methamphetamine and to possess 8 pseudoephedrine knowing and having reasonable cause to believe it would be 9 used to manufacture methamphetamine, in violation of 21 U.S.C. §§ 846, 10 841(a)(1), 841(C)(2), and 18 U.S.C. § 2; two counts of possession of 11 pseudoephedrine knowing and having reasonable cause to believe it would be 12 used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2); 13 conspiracy to money launder, in violation of 18 U.S.C. §§ 1956(h), 1956(a)(1), 14 and 1957; and several counts of laundering of monetary instruments, aiding 15 and abetting, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and 18 U.S.C. § 2. 16 Underlying Action, Dkt. 130, 133, 182-183.1 In December 2003, Petitioner was 17 sentenced to 360 months of incarceration. Pet. at 1; Underlying Action, Dkt. 18 182-183. Petitioner appealed the judgment, which was affirmed in part and 19 remanded in part by the Ninth Circuit Court of Appeals on January 23, 2007. 20 United States v. Herrera, Case No. 04-50000 (9th Cir.), Dkt. 92. A petition for 21 rehearing was denied on February 26, 2007. Id., Dkt. 100. 22 On August 28, 2009, Petitioner filed a motion under 28 U.S.C. § 2255 to 23 vacate, set aside, or correct the sentence. Underlying Action, Dkt. 341. On 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 6 Filed 02/23/23 Page 4 of 10 Page ID #:28

1 October 16, 2009, Petitioner voluntarily dismissed this motion, entered by the 2 district court on December 23, 2009. Id., Dkt. 362, 372. Petitioner filed a 3 second motion under Section 2255 on December 20, 2011, which was denied 4 on January 17, 2013. Id., Dkt. 403, 412. 5 In July 2011, Petitioner filed a Section 2241 petition, which was 6 dismissed because his claims were not cognizable in a federal habeas petition. 7 See Herrera, Sr. v. Sanders, Case No. 2:11-cv-06196-RSWL-MAN (C.D. Cal.), 8 Dkt. 1, 3-4. Less than a month later, Petitioner filed another habeas petition 9 under Section 2241 challenging a restitution order. Herrera, Sr. v. Sanders, 10 Case No. 2:11-cv-06486-RSWL-MAN (C.D. Cal.), Dkt. 1. That petition was 11 dismissed with prejudice on October 1, 2012. Id., Dkt. 15. A third habeas 12 petition under Section 2241 was “essentially a re-hash” of his first habeas 13 petition and dismissed without prejudice on February 8, 2012. See Herrera, Sr. 14 v. Sanders, 2:12-cv-00976-JSL-MAN (C.D. Cal.), Dkt. 1, 3, 4. 15 Meanwhile, on October 10, 2013, Petitioner was declared a vexatious 16 litigant, with the District Judge finding Petitioner had an “extensive history of 17 frivolous litigation” in the Underlying Action, raising “patently meritless 18 positions.” Underlying Action, Dkt. 447 (“Vexatious Litigant Order”) at 6, 10, 19 13-14. Under the Vexatious Litigant Order, Petitioner is prohibited from filing 20 documents that: 21 (1) contest the jurisdiction of this Court over his conviction, (2) is a 22 non-motion or contract-style filing such as, but not limited to, a 23 Notice, Covenant, Warrant, Offer of Proof, Conditional 24 Acceptance, Waiver of Tort, Presentment, Letter, Claim for 25 Damage or Injury, or similar filings which reference tort claims, 26 non-corporate status, debtors, interpleaders, damages, property 27 claims, chattel, contracts, agents, principals, or rescission, or (3) 28 without obtaining the prior approval of the Ninth Circuit Court of 4 Case 2:23-cv-01162-DSF-JDE Document 6 Filed 02/23/23 Page 5 of 10 Page ID #:29

1 Appeals, request relief which would be appropriately addressed 2 pursuant to 28 U.S.C. § 2255. 3 Vexatious Litigant Order at 13-14. On July 28, 2014, the Ninth Circuit 4 affirmed the Vexatious Litigant Order. Underlying Action, Dkt. 454. 5 Since that time, Petitioner has continued to seek release. For instance, 6 on April 22, 2019, Petitioner filed a request for sentence reduction pursuant to 7 18 U.S.C. § 3582(c)(1)(B) based on the First Step Act of 2018 and Amendment 8 782 to the Sentencing Guidelines. Underlying Action, Dkt. 486. On July 29, 9 2019, the district court denied the motion pursuant to the First Step Act (id., 10 Dkt. 492), and denied the motion as to Amendment 782 on October 10, 2019. 11 Id., Dkt. 502. On January 23, 2020, Petitioner filed another motion to reduce 12 sentence pursuant to Section 3582(c), which was denied on April 24, 2020. Id., 13 Dkt. 511, 536. Petitioner, through counsel, filed a renewed motion for 14 compassionate release on May 18, 2020, which was denied on August 10, 15 2020. Id., Dkt. 546, 557. That decision was affirmed by the Ninth Circuit on 16 June 29, 2021. Id., Dkt. 562. On March 4, 2022, Petitioner filed another 17 motion to reduce sentence pursuant to the First Step Act and 18 U.S.C. § 3585, 18 which was denied on May 9, 2022. Id., Dkt. 570, 582. On October 12, 2022, 19 Petitioner filed another motion for reduction of sentence in the Underlying 20 Action, which was denied on February 7, 2023. Id., Dkt. 595, 617. 21 On October 21, 2022, Petitioner filed another habeas petition under 28 22 U.S.C. § 2241, seeking release on home confinement under the Coronavirus 23 Aid, Relief, and Economic Security (CARES) Act, and asserting alleged 24 failures to comply with an injunction in another action and inadequate medical 25 care, which was dismissed on January 18, 2023. See Herrera, Sr. v. Birkholz, 26 Case No. 2:22-cv-07784-RSWL-JDE (C.D. Cal.), Dkt. 10 (Report and 27 Recommendation of Assigned Magistrate Judge recommending dismissal), 28 Dkt. 11 (Order Accepting Report and Recommendation, dismissing action), 5 Case 2:23-cv-01162-DSF-JDE Document 6 Filed 02/23/23 Page 6 of 10 Page ID #:30

1 Dkt. 12 (Judgment of Dismissal). Petitioner also recently had a civil rights 2 complaint dismissed. Herrera, Sr. v. US Attorney California-Central, Case No. 3 2:22-cv-04245-GW-AGR (C.D. Cal.), Dkt. 18 (Order of Dismissal dated 4 January 19, 2023). 5 As noted, the Court received the instant Petition on February 14, 2023. 6 III. 7 SUMMARY OF THE PETITION 8 In the one-page Petition, Petitioner appear to argue that the BOP 9 wrongfully denied him certain credits toward early release under the First Step 10 Act, the “Elderly Offender Credit” and “Good Time Credits” due to Petitioner 11 having been found to be a “leader/organizer of criminal activity,” which 12 Petitioner asserts, is a “made up policy of the BOP as [the First Step Act], 13 Elderly Offender Credit and the [Good Time Credits] has no such rule within 14 the statutes.” Pet. at 1. Petitioner also argues that the BOP is “reneging in 15 accepting [his] officially given documents from the Department of Defense” 16 which, Petitioner argues, recognize that he is a United States citizen as a result 17 of his military service in combat, and asks the Court to “recognize” his status. 18 In conclusion, Petitioner asks the Court to order the BOP “to apply [his] [First 19 Step Act], Elder Offender Credits, [his] [Good Time Credits] as statutorily 20 required, and the fact that the Department of Defense granted [his] full 21 citizenship of the United States which [he] earned back in the year 1966, as 22 was done officially.” Id. 23 IV. 24 DISCUSSION 25 A petition for writ of habeas corpus may lie under 28 U.S.C. 26 § 2241(c)(3), subject to other limitations, if the petitioner “is in custody in 27 violation of the Constitution or laws or treaties of the United States.” Here, 28 Petitioner does not challenge the lawfulness of his underlying conviction or 6 Case 2:23-cv-01162-DSF-JDE Document 6 Filed 02/23/23 Page 7 of 10 Page ID #:31

1 sentence. Rather, Petitioner asks the Court to order the BOP to “apply” certain 2 credits to which Petitioner contends he is entitled. The Petition appears to 3 suffer from at least two defects. 4 First, Petitioner has not clearly set forth the grounds that plausibly 5 suggest entitlement to relief. Habeas Rules 2(c) and 4 require a statement of all 6 grounds for relief and the facts supporting each ground; the petition should 7 state facts that point to a real possibility of error and show the relationship of 8 the facts to the claim. See Habeas Rule 4, Advisory Committee Notes to 1976 9 Adoption; Mayle v. Felix, 545 U.S. 644, 655 (2005); O’Bremski v. Maass, 915 10 F.2d 418, 420 (9th Cir. 1990) (as amended). Allegations in a petition that are 11 vague, conclusory, palpably incredible, or unsupported by a statement of 12 specific facts, are insufficient to warrant relief, and are subject to summary 13 dismissal. See, e.g., Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); 14 James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); Hendricks v. Vasquez, 908 F.2d 15 490, 491 (9th Cir. 1990). 16 Here, the Petition asserts the BOP erroneously denied Petitioner certain 17 benefits under three alleged statutory or administrative schemes, that is, the 18 First Step Act, Elder Offender Credit, and Good Time Credits, based on the 19 BOP’s finding that Petitioner was an organizer or leader in his underlying 20 criminal conduct. But Petitioner does not describe the applicable programs, the 21 alleged denials of relief, or any proceedings that led to the alleged wrongful 22 denials of benefits. Indeed, to the extent Petitioner is seeking relief under the 23 First Step Act’s elderly offender reunification provision, as Petitioner has been 24 repeatedly advised, 34 U.S.C. § 60541(g) grants the Attorney General, not the 25 courts, discretion to release eligible elderly offenders, and as such, the Court 26 cannot grant relief under this statute. See, e.g., United States v. Herrera, 2022 27 WL 1488033, at *2 (C.D. Cal. May 9, 2022) (explaining that “this statute does 28 not empower the Court to release [Petitioner] as an elderly offender”); United 7 Case 2:23-cv-01162-DSF-JDE Document 6 Filed 02/23/23 Page 8 of 10 Page ID #:32

1 States v. Herrera, 2019 WL 3428835, at *1 (C.D. Cal. July 29, 2019) 2 (explaining that “the Court is not in a position to adjust his sentence or the 3 method of his imprisonment since the ‘statute merely grants the Attorney 4 General discretion to release eligible elderly offenders’”). Petitioner also claims 5 the BOP “reneg[ed] in accepting [his] officially given documents from the 6 Department of Defense, attached as exhibits, whereby [he is] fully recognized 7 as a United States citizen . . . .” However, the attachments are largely illegible 8 and Petitioner provides no explanation how this has “prevent[ed]” him from 9 receiving “the appropriate earned benefits.” The one-page Petition is wholly 10 conclusory and vague as to the bases for the alleged claims. As such, the 11 Petition is subject to dismissal. 12 Second, “[a]s a prudential matter, courts require that habeas petitioners 13 exhaust all available judicial and administrative remedies before seeking relief 14 under [28 U.S.C.] § 2241.” Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 15 2012). Exhaustion aids “judicial review by allowing the appropriate 16 development of a factual record in an expert forum; conserve[s] the court’s 17 time because of the possibility that the relief applied for may be granted at the 18 administrative level; and allow[s] the administrative agency an opportunity to 19 correct errors occurring in the course of administrative proceedings.” Ruviwat 20 v. Smith, 701 F.2d 844, 845 (9th Cir. 1983) (per curiam). As the requirement is 21 not a “jurisdictional prerequisite,” courts have discretion to waive the 22 requirement in Section 2241 cases. Ward, 678 F.3d at 1045 (citation omitted); 23 Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004). Courts may waive the 24 requirement where administrative remedies are inadequate or not efficacious, 25 pursuit would be futile, irreparable injury will result, or the administrative 26 proceedings would be void. See Ward, 678 F.3d at 1045; Laing, 370 F.3d at 27 1000. 28 Here, it appears from the face of the Petition that Petitioner has failed to 8 Case 2:23-cv-01162-DSF-JDE Document 6 Filed 02/23/23 Page 9 of 10 Page ID #:33

1 exhaust his administrative remedies as he argues that the exhaustion 2 requirement is “no longer . . . a jurisdictional requirement in a 2241 3 proceeding.” Pet. at 1. As set forth above, the Court agrees that exhaustion is 4 not a jurisdictional prerequisite; nonetheless, the Court sees no reason to 5 excuse exhaustion here as Petitioner does not allege that such remedies are 6 inadequate or that requiring pursuit of administrative remedies would futile, 7 cause irreparable injury, or would be void. See Ward, 678 F.3d at 1045; Laing, 8 370 F.3d at 1000. To the contrary, judicial review of Petitioner’s claims, based 9 on three different administrative and/or statutory schemes (the First Step Act, 10 the “Elderly Offender Credit,” and BOP Good Time Credits), would be aided 11 “by allowing the appropriate development of a factual record in an expert 12 forum; [would] conserve the court’s time because of the possibility that the 13 relief applied for may be granted at the administrative level; and [would] allow 14 the administrative agency an opportunity to correct errors in the course of 15 administrative proceedings.” Ruviwat, 701 F.2d at 845. Other than noting 16 exhaustion is not a jurisdictional prerequisite, Petitioner does not provide an 17 explanation as to why the exhaustion requirement should be waived in this 18 case. His cursory argument that “it is a BOP policy that Unit Team has said I 19 connot change, hence, administrative remedies is not available and no forms 20 were given to me to grieve this policy” (Pet. at 1) lacks specific factual support 21 and as such, is insufficient to demonstrate exhaustion would be futile here. 22 Therefore, the Petition is subject to dismissal for failure to exhaust 23 administrative remedies. 24 V. 25 ORDER 26 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 27 is ORDERED TO SHOW CAUSE, in writing, by no later than twenty-one 28 (21) days from the date of this Order, why this action should not be dismissed 9 ase 2:23-cv-01162-DSF-JDE Document6 Filed 02/23/23 Page 100f10 Page ID#:3

1 || under Habeas Rule 4 for the reasons stated above. To the extent Petitioner 2 ||contends he has exhausted his administrative remedies, Petitioner is directed to 3 || provide information regarding his efforts to exhaust his claims and attach 4 ||copies of any documents establishing that his claims are indeed exhausted. If 5 || Petitioner claims exhaustion of his administrative remedies should be waived, 6 || he shall set forth in detail the facts supporting this contention. 7 If, after review of this Order, Petitioner should decide not to further 8 || pursue this action at this time, Petitioner may voluntarily dismiss the action by 9 || filing a Notice of Dismissal in accordance with Federal Rule of Civil 10 || Procedure 41(a)(1). The Clerk is directed to send Petitioner a Central District 11 || Request for Dismissal form. 12 Petitioner is cautioned that a failure to respond timely in compliance 13 || with this Order could result in this action being dismissed for the foregoing 14 |/reasons, for failure to prosecute, and for failure to comply with a Court order. 15 ||See Fed. R. Civ. P. 41(b). Md Sel Dated: February 23, 2023 tht LD: V7 N D. EARLY 18 nited States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 10