Smith v. Rios
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus; ORDER REQUIRING Objections to Be Filed Within Twenty Days, signed by Magistrate Judge Jennifer L. Thurston on 5/4/11: Recommending that the Petition for Writ of Habeas Corpus filed by Dennis Dean Smith 1 be DISMISSED; Objections to F&R due by 5/27/2011, Reply due 10 court days (+3 days if served by mail) after service of the Objections. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DENNIS DEAN SMITH,
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Petitioner,
v.
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H. A. RIOS,
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Respondent.
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1:11-cv-00306-AWI-JLT HC
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION FOR WRIT OF HABEAS
CORPUS (Doc. 1)
ORDER REQUIRING OBJECTIONS TO BE
FILED WITHIN TWENTY DAYS
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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
Petitioner filed the instant federal petition on February 22, 2011. (Doc. 1). The petition
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alleges that on May 31, 2006, Petitioner was sentenced to a term of life in prison in the United
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States District Court for the Southern District of Iowa following his conviction for conspiracy to
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distribute methamphetamine. (Doc. 1, p. 2). On May 15, 2007, the United States Court of
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Appeals, Eighth Circuit, rejected his direct appeal. (Id.).
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Petitioner now brings this habeas petition, challenging his conviction in the Southern
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District of Iowa on the grounds that (1) his trial counsel provide ineffective assistance, and (2)
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Petitioner has newly discovered evidence of witness coercion. (Id., p. 3). Because the Court has
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determined that Petitioner’s claim challenges his original sentence, and therefore should have
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been brought in the trial court as a motion pursuant to 28 U.S.C. § 2255, the Court will
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recommend that the instant petition be dismissed.
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DISCUSSION
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A federal court may not entertain an action over which it has no jurisdiction. Hernandez
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v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). A federal prisoner who wishes to challenge the
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validity or constitutionality of his conviction or sentence must do so by way of a motion to
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vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d
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1160, 1162 (9th Cir.1988); Thompson v. Smith, 719 F.2d 938, 940 (8th Cir.1983); In re
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Dorsainvil, 119 F.3d 245, 249 (3rd 1997); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th
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Cir.1981). In such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163.
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A prisoner may not collaterally attack a federal conviction or sentence by way of a petition for a
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writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470
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(9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 F.2d 840, 842 (5th
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Cir.1980).
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In contrast, a federal prisoner challenging the manner, location, or conditions of that
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sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241.
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Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175,
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177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United
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States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79
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(3rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v.
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United States, 610 F.2d 672, 677 (9th Cir. 1990).
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Petitioner’s allegation that his trial counsel provided ineffective assistance in violation of
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his federal constitutional rights and that he has newly discovered evidence that a witness was
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coerced by the prosecution to testify in a manner prejudicial to Petitioner. The proper vehicle for
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challenging such alleged errors is by way of a motion to vacate, set aside, or correct the sentence
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pursuant to 28 U.S.C. § 2255, not a habeas corpus petition. Because Petitioner is, in reality,
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challenging his sentence, not its execution, he is precluded from bringing such a collateral attack
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in a petition filed pursuant to § 2241. Grady, 929 F.2d at 470; Tripati, 843 F.2d at 1162;
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Nevertheless, a federal prisoner authorized to seek relief under § 2255 may seek relief
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under § 2241 if he can show that the remedy available under § 2255 is "inadequate or ineffective
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to test the validity of his detention." Hernandez v. Campbell, 204 F.3d 861, 864-5 (9th Cir.2000);
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United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting § 2255). The Ninth Circuit has
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recognized that this is a very narrow exception. Id; Ivy v. Pontesso, 328 F.3d 1057 (9th Cir.
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2003) (a petitioner must show actual innocence and that he never had the opportunity to raise it
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by motion to demonstrate that § 2255 is inadequate or ineffective); Holland v. Pontesso, 234 F.3d
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1277 (9th Cir. 2000) (§ 2255 not inadequate or ineffective because Petitioner misses statute of
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limitations); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s denial of a prior § 2255 motion is
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insufficient to render § 2255 inadequate.); Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000)
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(same); Tripati, 843 F.2d at 1162-63 (9th Cir.1988) (a petitioner's fears of bias or unequal
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treatment do not render a § 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th
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Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 (9th Cir.1956); see United States v. Valdez-
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Pacheco, 237 F.3d 1077 (9th Cir. 2001) (procedural requirements of § 2255 may not be
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circumvented by invoking the All Writs Act, 28 U.S.C. § 1651). The burden is on the petitioner
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to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83
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(9th Cir. 1963).
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In Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003), the Ninth Circuit held that the remedy
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under a § 2255 motion would be “inadequate or ineffective” if a petitioner is actually innocent,
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but procedurally barred from filing a second or successive motion under § 2255. Ivy, 328 F.3d at
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1060-1061. That is, relief pursuant to § 2241 is available when the petitioner’s claim satisfies
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the following two-pronged test: “(1) [the petitioner is] factually innocent of the crime for which
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he has been convicted and, (2) [the petitioner] has never had an ‘unobstructed procedural shot’ at
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presenting this claim.” Id. at 1060.
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“In determining whether a petitioner had an unobstructed procedural shot to pursue his
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claim, we ask whether petitioner’s claim ‘did not become available’ until after a federal court
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decision.” Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008), cert. denied __ U.S. __, 129
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S.Ct. 254 (2008). “In other words, we consider: (1) whether the legal basis for petitioner’s claim
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‘did not arise until after he had exhausted his direct appeal and first § 2255 motion;’ and (2)
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whether the law changed ‘in any way relevant’ to petitioner’s claim after that first § 2255
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motion.” Id., citing Ivy, 328 F.3d at 1060-1061.
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In Ivy, the petitioner, who was convicted in 1993 in Missouri district court of engaging in
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a continuing criminal enterprise, contended in a habeas corpus petition filed pursuant to § 2241
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in the District of Arizona, where he was confined, that he was actually innocent because the
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indictment did not charge him with the requisite three offenses to sustain a conviction for a
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continuing criminal enterprise. Ivy, 328 F.3d at 1058. After an unsuccessful appeal, Ivy filed
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motions pursuant to § 2255 in 1995, 1997, and 1999. Id. The original motion was denied on its
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merits, while the second and third motions were denied as second and successive motions. Id. In
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2000, Ivy filed his federal habeas petition in the Arizona district court. Id. The district court,
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however, dismissed the petition because Ivy had not shown that § 2255 was either inadequate or
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ineffective. Id.
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In affirming the district court’s dismissal, the Ninth Circuit employed the two-part test
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discussed above, i.e., that petitioner must show he is factually innocent of the crime for which he
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had been convicted and that he has never had an “unobstructed procedural shot” at presenting
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this claim. Id. at 1059. In explaining that standard, the Ninth Circuit stated:
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In other words, it is not enough that the petitioner is presently barred from raising his
claim of innocence by motion under § 2255. He must never have had the opportunity to
raise it by motion.
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Id. at 1060 (emphasis supplied). Applying that standard, the Ninth Circuit rejected Ivy’s claims,
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holding that the law regarding continuing criminal enterprises had not changed subsequent to his
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conviction and that he had indeed had an opportunity to raise such a claim in the past. Id. at
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1061.
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Here, Petitioner makes no claim of actual innocence. However, even if the Court were to
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construe his claim of newly discovered evidence as one of actual innocence, the reasoning in Ivy
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would still be dispositive of this case. The burden is on the petitioner to show that the remedy is
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inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). This
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Petitioner has failed to do.
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First, it does not appear to the Court that Petitioner has ever presented a § 2255 motion to
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the court of conviction, i.e., the Southern District of Iowa. Although Petitioner appends to his
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petition a handwritten copy of such a motion, he also includes a letter from his prison case
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manager, dated November 3, 2008, stating that Petitioner was unable to submit his § 2255
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motion to the Southern District of Iowa because of a prison lock-down from August 6-25, 2008.
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(Doc. 1, p. 48). Later in the petition, Petitioner acknowledges that his § 2255 motion was “time
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barred denied” and that he “couldn’t mail it to the court” because of the lock-down. (Id., p. 51).
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Petitioner has not presented any document establishing that he actually filed such a motion with
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the Southern District of Iowa or that such a motion was denied by that court.
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As discussed previously, the fact that a petitioner has missed the one-year statute of
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limitation for filing a § 2255 motion does not render § 2255 either “inadequate or ineffective as a
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remedy. Holland v. Pontesso, 234 F.3d 1277. Moreover, here, unlike Holland, it does not appear
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that Petitioner ever actually filed the motion, which would, at a minimum, have afforded the
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court of conviction an opportunity to rule on Petitioner’s motion. This defect is especially
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significant because the one-year limitation period for filing a § 2255 motion may be equitably
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tolled when extraordinary circumstances beyond the petitioner’s control prevent him from filing
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a timely § 2255 motion. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288
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(9th Cir. 1997). By never raising his equitable tolling argument in the court of conviction, and,
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indeed, by never raising the § 2255 challenge to his conviction in the first instance in that court,
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Petitioner seeks to effectively circumvent the entire process established by 28 U.S.C. § 2255 and
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place those issues directly before this Court.
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Finally, as the Ninth Circuit has explained, it is not enough that a petitioner is presently
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barred from filing a § 2255 motion, he must “never have had the opportunity to raise” his claim
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by motion. Clearly, in this case, Petitioner had an opportunity to file a § 2255 motion in the
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Southern District of Iowa; he simply chose not to do so once the one-year period had expired.
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Thus, for all of the reasons set forth above, Petitioner’s use of habeas corpus to challenge
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his conviction in the Southern District of Iowa in this Court, is improper. Ivy, 328 F.3d at 1060.
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In sum, should Petitioner wish to pursue his claims in federal court, he must do so by way of a
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motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.1
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RECOMMENDATION
Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus
(Doc. 1), be DISMISSED.
This Findings and Recommendations is submitted to the United States District Court
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Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304
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of the Local Rules of Practice for the United States District Court, Eastern District of California.
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Within twenty (20) days after being served with a copy of this Findings and Recommendations,
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any party may file written objections with the Court and serve a copy on all parties. Such a
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document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Replies to the Objections shall be served and filed within ten (10) court
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days (plus three days if served by mail) after service of the Objections. The Court will then
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review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated: May 4, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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A petition for writ of habeas corpus pursuant to § 2255 must be filed in the court where petitioner was
originally sentenced. In this case, Petitioner challenges a sentence adjudicated in the United States District Court for
the Southern District of Iowa. Thus, that court is the proper venue for filing a petition for writ of habeas corpus
pursuant to § 2255.
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