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Landrum v. State

United States District Court, D. Arizona

March 16, 2015

Dwayne Terry Landrum, Petitioner,
v.
State of Arizona, Respondent.

ORDER

DAVID G. CAMPBELL, District Judge.

Petitioner Dwayne Terry Landrum, who is confined in the Federal Correctional Institution in Lompoc, California, has filed a pro se Petition for Writ of Mandamus pursuant to 28 U.S.C. § 1651(a). Petitioner's Mandamus Petition and this action will be dismissed without prejudice to filing a new action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, and either paying the $5.00 filing fee or filing an Application to Proceed In Forma Pauperis (Habeas).

I. Petition

Put briefly, Petitioner alleges that in November 2012, he was sentenced in federal court to a 40-month term of imprisonment. Subsequently, in October 2013, he was sentenced in a related state case to a 2.5-year term of imprisonment that was to run concurrently to his federal sentence (which he had begun serving in January 2013). Petitioner was also given credit for time already served in the state matter. Petitioner appears to allege that the Federal Bureau of Prisons ("BOP") is either not calculating his two sentences as concurrent to each other, or is not giving him proper credit for the time he served pre-sentence in the state matter. As a result, Petitioner alleges that he should have been entitled to halfway house placement in October 2014 under the Second Chance Act of 2014, but that, due to BOP's miscalculation, he has not been so classified and remains incarcerated past the expiration of his sentence.

II. Mandamus Relief

The issuance of a writ of mandamus is an extraordinary remedy which may be granted only in the exercise of sound discretion. Miller v. French, 530 U.S. 327, 339 (2000). Mandamus relief is available to compel an officer or agency of the United States to perform a duty only when: (1) that petitioner has a clear and certain claim; (2) the respondent has a non-discretionary, ministerial duty, which is so plain as to be free from doubt; and (3) the petitioner does not have another adequate and available remedy. 28 U.S.C. § 1361; Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003); Benny v. United States Parole Comm'n, 295 F.3d 977, 898 (9th Cir. 2002); Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994).

Petitioner has an adequate available remedy under 28 U.S.C. § 2241, which he may use to challenge the fact or duration of his confinement or the execution of his sentence. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). Because Petitioner has failed to satisfy at least one of the three prongs for mandamus relief, his Mandamus Petition and this action will be summarily dismissed without prejudice to Petitioner commencing a new action under 28 U.S.C. § 2241. To do so, Petitioner must use the court-approved form for seeking habeas relief pursuant to § 2241. LRCiv 3.4. In addition, he must either pay the $5.00 filing fee or file an Application to Proceed In Forma Pauperis on this District's court-approved form. The Clerk of Court will provide Movant with the appropriate form to use in filing a new case pursuant to 28 U.S.C. § 2241, as well as the form for seeking In Forma Pauperis status should he choose to do so.

IT IS ORDERED:

(1) Petitioner's Petition for Writ of Mandamus is denied (Doc. 1) and this action is dismissed without prejudice to Petitioner commencing a new case pursuant to 28 U.S.C. § 2241, and the Clerk of Court is directed to enter judgment accordingly.

(2) The Clerk of the Court must mail to Petitioner a court-approved form for filing an Application to Proceed In Forma Pauperis (Habeas) and a Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody.

Instructions for Filing a Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody in the United States District Court for the District of Arizona

1. Who May Use This Form. If you are detained in Arizona, you may use this form to challenge your detention by federal immigration authorities or to challenge the execution of your federal sentence by the United States Bureau of Prisons. You are asking for release or earlier release on the grounds that your detention or future detention violates the United States Constitution or other federal law. You should not use this form to challenge a state or federal judgment of conviction or sentence. If you are challenging a conviction or sentence entered against you by a state court, you should file a petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody. If you are challenging a judgment of conviction or sentence entered by a federal court, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment. Any claim that may be brought or has already been brought in a motion under 28 U.S.C. § 2255 may not be brought using this form unless it appears that the § 2255 motion is inadequate or ineffective to test the legality of your detention. This form should not be used in death penalty cases. If you were sentenced to death, you are entitled to the assistance of counsel and you should request the appointment of counsel.

2. The Form. Local Rule of Civil Procedure (LRCiv) 3.5(a) provides that habeas corpus petitions must be filed on the court-approved form. The form must be typed or neatly handwritten. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages. The form, however, must be completely filled in to the extent applicable. You do not need to cite law. If you want to file a brief or arguments, you must attach a separate memorandum.

3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, ...


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