Sinek v. United States

Opinion

CHARLES R. SINEK, Case No. 23-cv-04352-VKD

Petitioner, ORDER TO SHOW CAUSE v.

Respondent.

Petitioner Charles R. Sinek, who is currently serving the supervised release portion of his federal sentence in Oakland, California, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, asserting that he is entitled to time credits under the First Step Act (“FSA”). Dkt. No. 1 at 2. Mr. Sinek has paid the filing fee. Dkt. No. 2. This court may entertain a petition for writ of habeas corpus from a person “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Review of the execution of a federal sentence is properly brought as a petition under § 2241. See United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) (presentence time credit claim); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1980) (parole decision claim); see also Mills v. Taylor, 967 F.2d 1397, 1400 (9th Cir. 1992) (granting § 2241 petition alleging denial of presentence time credit). The court shall “award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). Mr. Sinek claims that he is owed “20+ months of credits” under the FSA to reduce the term of his supervised release. Dkt. No. 1 at 7. Liberally construed, this claim is cognizable and merits an answer from Respondent. For the foregoing reasons and for good cause shown, 1. The Clerk shall electronically serve a copy of this order upon Respondent and Respondent’s attorney, the United States Attorney for the Northern District of California, at the following email addresses: (1) usacan.ecf@usdoj.gov; (2) Michelle.Lo@usdoj.gov; and (3) kathy.terry@usdoj.gov. The petition and the exhibits thereto are available via the Electronic Case Filing System for the Northern District of California. The Clerk shall also include a magistrate judge jurisdiction consent/declination form. The Clerk also shall serve a copy of this order on Mr. Sinek. 2. Respondent shall serve on Mr. Sinek, within 60 days of the issuance of this order, an answer showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the answer and serve on Mr. Sinek a copy of all portions of his federal criminal record that are relevant to a determination of the issues presented by the petition. If Mr. Sinek wishes to respond to the answer, he shall do so by filing a traverse with the Court and serving it on Respondent within 30 days of his receipt of the answer. 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer. If Respondent files such a motion, Mr. Sinek shall file with the Court and serve on Respondent an opposition or statement of non-opposition within 28 days of receipt of the motion, and Respondent shall file with the court and serve on Mr. Sinek a reply within 14 days of receipt of any opposition. 4. Mr. Sinek has the responsibility to prosecute this case. Mr. Sinek is reminded that all documents and communications with the Court must be served on Respondent by mailing a 1 Court and all parties informed of any change of address by filing a separate paper captioned 2 “Notice of Change of Address.” He must comply with the Court’s orders in a timely fashion. 3 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 4 Federal Rule of Civil Procedure 41(b). 6 Dated: November 9, 2023 7 . 2 8 VIRGINIA K. DEMARCHI 9 United States Magistrate Judge 10 11 a 12

15 16

= 17

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