(HC) Perry v. United States Bureau of Prisons

Opinion

GARETH LORENZO PERRY, No. 1:20-cv-01494-NONE-SKO (HC) Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS v. HABEAS PETITION UNITED STATES BOP CASE (Doc. Nos. 1, 8) MANAGER CERROTE, Respondent. Petitioner Gareth Lorenzo Perry is a state prisoner proceeding in propria persona with a pleading styled as a “Petition for 2241 and 1983 claim.” (Doc. No. 1 at 1.) After screening petitioner’s pleading, the assigned magistrate judge found, based on petitioner’s allegations, that petitioner is only seeking civil rights relief concerning the conditions of his confinement and, therefore, that federal habeas relief is not available to him with respect to those claims. (Doc. No. 8 at 1–2.) Accordingly, the magistrate judge recommended that the habeas petition pending before this court be dismissed and the Clerk of Court be directed to provide petitioner a blank civil rights form so he could file a separate Bivens1 action instead. (Id. at 3.) On November 30, 2020, petitioner filed objections to the pending findings and recommendations. (Doc. No. 9.) ///// 1 See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a de novo review of the case. In his objections, petitioner argues that he is seeking not only civil rights reliefs concerning the conditions of his confinement, but also habeas relief concerning his sentence. (Doc. No. 9 at 1.) Having reviewed his petition, the court notes that petitioner was allegedly sentenced in both a state court in Alabama as well as a U.S. District Court and is serving those sentences concurrently at the United States Penitentiary, Atwater. (Doc. No. 1 at 4.) It is unclear from petitioner’s habeas petition and objections, however, whether he is seeking to challenge either his state or federal sentence. (Doc. Nos. 1, 9.) Nonetheless, it appears petitioner may be attempting to seek habeas relief on grounds that his sentence should have been based a lower criminal history category and that his right against double jeopardy was violated, though his reference to “custody points” is confusing. (Doc. No. 1 at 1, 4.) In any event, to the extent petitioner is seeking to challenge his federal conviction or sentence under 28 U.S.C. § 2255, he must bring such petition before “the sentencing court rather than the district where the prisoner is confined.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 497 (1973). To the extent petitioner is seeking to challenge his state conviction or sentence under 28 U.S.C. § 2254, he must first adjudicate his claims in state-court proceedings through the highest state court, which petitioner has not alleged to have done. See Harrington v. Richter, 562 U.S. 86, 92 (2011). And to the extent petitioner is seeking relief under 28 U.S.C. § 2241, his current habeas petition is improper because he is not seeking to “challenge the manner, location, or conditions of a sentence’s execution,” nor is he claiming that “his remedy under § 2255 is ‘inadequate or ineffective to test the legality of his detention.’” Hernandez v. Campbell, 204 F.3d 861, 864–65 (9th Cir. 2000). For these reasons, the recommendation to dismiss petitioner’s habeas petition is well founded. As explained therein, the instant petition is not amendable to conversion, so petitioner must file a new civil rights action or habeas petition in the proper court by specifying which sentence or conviction (state or federal) he seeks to challenge. The court therefore concludes that the pending findings and recommendations are supported by the record and proper analysis. ///// The court must now turn to whether a certificate of appealability should be issued. A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El y. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). In the present case, the court finds that reasonable jurists would not find the court’s determination that the petition should be dismissed debatable or wrong, or that petitioner should be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability. Accordingly, the court orders as follows: 1. The findings and recommendations, filed November 17, 2020 (Doc. No. 8), is ADOPTED in full; 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 3. The court DECLINES to issue a certificate of appealability. 4. The Clerk of Court is DIRECTED to provide petitioner with blank forms for filing a Bivens action; and 5. The Clerk of Court is DIRECTED to assign a district judge to this case for the purpose of closing the case and then to enter judgment and close the case. IT IS □□ ORDERED. sass - Dated: _ December 14, 2020 Yel A. 7, yA UNITED STATES DISTRICT JUDGE