Opinion
No. CV 04-2912-PHX-DGC.
January 10, 2006
ORDER
Petitioner Hector Fabio-Ramos has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. The Petition will be dismissed with leave to amend.
A. Background
On February 21, 2003, in the United States District Court for the District of Nevada, Petitioner was convicted of possession with intent to distribute methamphetamine, a violation of 21 U.S.C. § 841(a)(1). See United States v. Fabio-Ramos, No. 2:02-cr-193-PMP (LRL) (D. Nev.). He was sentenced to 51 months imprisonment. Petitioner is presently serving his sentence in Eloy, Arizona. In his Petition for Writ of Habeas Corpus filed with this Court, Petitioner contends that the Bureau of Prisons has miscalculated his good time credit.
B. Summary Dismissal
The Rules Governing Section 2254 Cases may be applied to habeas corp us petitions other than those brought under 28 U.S.C. § 2254. See Rule 1(b), Rules Governing Section 2254 Cases. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing Section 2254 Cases; see also 28 U.S.C. § 2243. If the Petitioner is not entitled to relief, the petition must be summarily dismissed.Id.; Obremski v. Maass, 915 F.2d 418 (9th Cir. 1990) (affirming district court's summary dismissal as a matter of law, but relying upon Rule 4 rather than Rule 12(b)(6)).
Under Rule 4, district courts must take an active role in summarily disposing of facially defective petitions. Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). This summary dismissal power is not without limit s. Id. at 1128. A court must give a petitioner notice and an opportunity to respond to the argument for dismissal. Id.; accord Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001). When the petitioner is pro se, the court must make clear the issue and the consequences for failing to respond. Boyd, 147 F.3d at 1128. Because the Court finds that Petitioner's application is facially defective, Petitioner is hereby given notice of the Court's conclusion. He will be permitted thirty days to respond or file an Amended Petition.
C. Good Time Credit Calculation
Petitioner contends that the Bureau of Prisons has failed to properly calculate his good time credit under 18 U.S.C. § 3624(b). Section 3624(b)(1) provides, in part that:
[A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance within situational disciplinary regulations.18 U.S.C. § 3624(b)(1) (emphasis added). Petitioner was informed that he would receive 54 days of credit for each year served, or 199 days, but Petitioner believes that he should receive 54 days of credit for each year of his imposed 51-month sentence, for a total of 229 days.
The Ninth Circuit Court of Appeals squarely addressed the Bureau of Prison's interpretation of 18 U.S.C. § 3624(b)(1) inPacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001). The Bureau of Prisons has interpreted "term of imprisonment" in § 3624(b)(1) to mean the actual time served and not the length of the imposed sentence. Id. at 1270-71. The Ninth Circuit found that the "term of imprisonment" was ambiguous, but that the interpretation by the Bureau of Prisons was entitled to deference because it was reasonable. Id. at 1271. Petitioner relies onWhite v. Scibana, 314 F. Supp. 2d 834 (W.D. Wis. 2004), andMoreland v. Federal Bureau of Prisons, 363 F. Supp. 2d 882 (S.D. Tex. 2005), for the proposition that "term of imprisonment" means sentence imposed rather than sentence served. But both of those decisions were reversed on appeal. White v. Scibana, 390 F.3d 997, 1001 (7th Cir. 2004) (agreeing with Pacheco-Camacho that "term of imprisonment" means sentence imposed); Moreland v. Federal Bureau of Prisons, 431 F.3d 180 (5th Cir. 2005) (same). Accordingly, the Petition will be dismissed as meritless and Petitioner will be given thirty days to respond or file an amended petition.
D. Amendment
Petitioner may choose to amend his Petition. The Clerk of Court will be directed to provide Petitioner with a form for filing a habeas action pursuant to § 2241. Petitioner is advised that the Amended Petition must be retyped or rewritten in its entirety on a court-approved form and may not incorporate any part of the original Petition by reference. Any Amended Petition submitted by Petitioner must be clearly designated as such on the face of the document . An amended petition supersedes the original petition.Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treat ed as nonexistent. Ferdik, 963 F.2d at 1262. Thus, grounds alleged in an original petition which are not alleged in the amended petition are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). E. Warning of Possible Dismissal Pursuant to Rule 41
Petitioner should take notice that if he fails to timely comply with every provision of this Order, or any order of the Court entered in this matter, the Petition and this action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik, 963 F.2d at 1260 (district court may dismiss action for failure to comply with any order of the Court).
IT IS THEREFORE ORDERED:
(1) That Petitioner shall have 30 days from the date this Order is filed to either file a Response regarding why the Petition should not be dismissed or to file an Amended Petition. The Amended Petition must be retyped or rewritten in its entirety on a court-approved form and may not incorporate any part of the original Petition by reference. Any Amended Petition submitted by Petition should be clearly designated as such on the face of the document.
(2) That at all times during the pendency of this action, Petitioner shall immediately advise the Court of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." Petitioner shall serve a copy of the Not ice of Change of Address on all opposing parties. The notice shall contain only information pertaining to the change of address and its effective date, and shall not include a motion for other relief. Failure to timely file a not ice of change of address may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
(3) That the Clerk of Court shall enter a judgment of dismissal of this act ion, without prejudice and without further notice to Petitioner, if Petitioner fails to file a Response or Amended Petition within 30 days of the date this Order is filed.
(4) That the Clerk of Court shall provide to Petitioner a current court-ap proved form for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
FORM