Flores v. United States

Opinion

FILED

l Jan 29 2023 Mark B. Busby 2 CLERK, U.S. DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROMELIA FLORES, Case No. 22-cv-08922-TSH 8 Petitioner, 9 ORDER TO SHOW CAUSE 10 THAHESHA JUSINO, Warden, 11 Respondent. 12

13 Petitioner, an inmate at Federal Correctional Institution — Dublin,' filed this pro se action

5 14 || seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the calculation of her 8 15 || sentence. Petitioner has paid the filing fee. The Court ORDERS Respondent to show cause why A 16 federal habeas relief should not be granted.

17 DISCUSSION

18 IA, Standard of Review 19 Review of the execution of a federal sentence is properly brought as a petition under 28 20 || US.C. § 2241. See United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) (presentence 21 || time credit claim). A district court shall “award the writ or issue an order directing the respondent 22 || to show cause why the writ should not be granted, unless it appears from the application that the 23 || applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 24 Order to Show Cause 25 Petitioner pled guilty to conspiracy to commit money laundering and sentenced to a term 26 ' The Clerk of the Court is directed to substitute Warden Thahesha Jusino in place of the 27 previously named respondent because Warden Jusino is Petitioner’s current custodian. See 9g || Stanley v. Cal. Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994) (respondent in habeas petition typically is warden of facility in which petitioner is incarcerated).

1 of 240 months. Dkt. No. 5 at 5. The operative petition alleges that the federal sentencing court 2 ordered that Petitioner’s federal sentence was to run concurrently with her state sentence but the 3 Bureau of Prisons failed to credit Petitioner for the 30 months she spent in state custody. Dkt. No. 4 5 at 3, 5. Liberally construed, the petition states a cognizable claim for federal habeas relief and 5 merits an answer from Respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) 6 (federal courts must construe pro se petitions for writs of habeas corpus liberally). 7 CONCLUSION 8 For the foregoing reasons, the Court orders as follows. 9 1. The Clerk of the Court is directed to substitute Warden Thahesha Jusino in place of 10 the previously named respondent. 11 2. The Clerk shall serve electronically a copy of this order upon Respondent and 12 Respondent’s attorney, the United States Attorney for the Northern District of California, at the 13 following email addresses: (1) usacan.ecf@usdoj.gov; (2) michelle.lo@usdoj.gov; and 14 (3) kathy.terry@usdoj.gov. The petition and the exhibits thereto are available via the Electronic 15 Case Filing System for the Northern District of California. The Clerk shall serve on Petitioner by 16 mail a copy of this order and a consent or declination to magistrate judge jurisdiction form. 17 3. Respondent shall file with the Court and serve on Petitioner, within ninety-one 18 (91) days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 19 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 20 based on the claims found cognizable herein. Respondent shall file with the answer and serve on 21 Petitioner a copy of all portions of the state trial record that have been transcribed previously and 22 that are relevant to a determination of the issues presented by the petition. 23 If Petitioner wishes to respond to the answer, she shall do so by filing a traverse with the 24 Court and serving it on Respondent within thirty-five (35) days of the date the answer is filed. 25 4. Respondent may file, within ninety-one (91) days, a motion to dismiss on 26 procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of 27 the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file ] twenty-eight (28) days of the date the motion is filed, and Respondent shall file with the Court 2 || and serve on Petitioner a reply within fourteen (14) days of the date any opposition is filed. 3 5. Petitioner is reminded that all communications with the Court must be served on 4 || Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner must 5 || keep the Court informed of any change of address and must comply with the Court’s orders in a 6 || timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 7 || pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 8 (Sth Cir. 1997) (Rule 41(b) applicable in habeas cases). 9 6. Upon a showing of good cause, requests for a reasonable extension of time will be 10 || granted provided they are filed on or before the deadline they seek to extend. 1] IT IS SO ORDERED.

E 13 Dated: January 29, 2023 14 TAN LJ □□ THOMAS S. HIXSON nited States Magistrate Judge 16

Z 18 19 20 21 22 23 24 25 26 27 28