Casas-Montejano v. Najera

Filing 5

ORDER DISMISSING 2 Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to CLOSE CASE; ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY signed by Magistrate Judge Gary S. Austin on 5/10/2011. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HECTOR ROGELIO CASASMONTEJANO,
also known as HECTOR ROGER CASAS,

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1:11-CV-00524 GSA HC
ORDER DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS

Petitioner,
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ORDER DIRECTING CLERK OF COURT TO
CLOSE CASE
v.
ORDER DECLINING ISSUANCE OF
CERTIFICATE OF APPEALABILITY

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ALBERT NAJERA, U.S. MARSHAL,
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Respondent.
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/

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Petitioner, a federal detainee proceeding pro se, filed the instant Petition for Writ of Habeas
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Corpus on March 29, 2011. He is currently in the custody of the U.S. Marshal Service at the Fresno
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County Jail. He has been indicted on charges of unlawful reentry into the United States in United
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States of America v. Casas-Montejano, No. 1:10-cv-00134 OWW.
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The instant petition does not pertain to the indictment under which he is currently being
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detained. Rather, the petition challenges the plea agreement in United States of America v. Casas,
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2:92-cv-00181-JGD-1. Petitioner claims he pleaded guilty to Counts 1, 3, and 6, "in exchange for
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dismissal of 3 charges, reduction of the total sentence to less than 5 years, and permanent residency."
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See Petition at 4. He states he entered into the plea agreement based on Assistant U.S. Attorney
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Patrick McLaughlin's promise that Petitioner would not be deported. He claims he has fulfilled the

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terms of the plea agreement by pleading guilty to the three counts and by cooperating with the

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government as a confidential informant; however, the government has failed to fulfill the terms of

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the plea agreement by virtue of Petitioner's removal from the United States. Petitioner asks for

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specific performance of the plea agreement.

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JURISDICTION
A federal prisoner who wishes to challenge the validity or constitutionality of his federal

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conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence

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under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also Stephens

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v. Herrera, 464 F.3d 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007); Thompson v.

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Smith, 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997); Broussard

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v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing court has

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jurisdiction. Tripati, 843 F.2d at 1163. A prisoner may not collaterally attack a federal conviction or

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sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v.

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United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v.

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Flores, 616 F.2d 840, 842 (5th Cir.1980).

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In contrast, a prisoner challenging the manner, location, or conditions of that sentence's

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execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district

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where the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861,

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864-65 (9th Cir.2000) (per curiam); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990);

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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 (3rd

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Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987). “The general rule is

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that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the

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legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be

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avoided through a petition under 28 U.S.C. § 2241.” Stephens, 464 F.3d at 897 (citations omitted).

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Notwithstanding, pursuant to the savings clause in § 2255, a federal prisoner may file a

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petition pursuant to § 2241 to challenge the conviction and sentence if he can show that the remedy

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available under § 2255 is "inadequate or ineffective to test the validity of his detention." United

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States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting § 2255); see Hernandez, 204 F.3d at 864-

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65. The Ninth Circuit has recognized that it is a very narrow exception. Ivy v. Pontesso, 328 F.3d

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1057, 59 (9th Cir.) (as amended), cert. denied, 540 U.S. 1051 (2003). The remedy under § 2255

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usually will not be deemed inadequate or ineffective merely because a prior § 2255 motion was

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denied, or because a remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct.

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3, 5 (1964) (a court’s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.);

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Tripati, 843 F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255

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petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229

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F.2d 582 (9th Cir.1956).

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There is little guidance on what constitutes “inadequate and ineffective” in relation to the

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savings clause. The Ninth Circuit has acknowledged that “[other] circuits, however, have held that

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Section 2255 provides an ‘inadequate and ineffective’ remedy (and thus that the petitioner may

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proceed under Section 2241) when the petitioner claims to be: (1) factually innocent of the crime for

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which he has been convicted; and, (2) has never had an ‘unobstructed procedural shot’ at presenting

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this claim .” Ivy, 328 F.3d at 1059-60, citing Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir.2000));

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see also Stephens, 464 F.3d at 898. 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).

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In this case, Petitioner is challenging the validity of his federal conviction and sentence

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imposed by the United States District Court for the Central District of California. Therefore, the

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appropriate procedure would be to file a motion pursuant to § 2255 in the Central District, not a

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habeas petition pursuant to § 2241 in this Court. This Court is without jurisdiction unless Petitioner

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can demonstrate that he qualifies under the savings clause. He has failed to do so. He does not

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claim actual innocence and he does not claim that he has been denied an opportunity to present his

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claims to the Central District. Therefore, the Court lacks jurisdiction to proceed in this matter. The

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petition must be dismissed. Petitioner is advised that he should seek relief by filing a motion

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pursuant to 28 U.S.C. § 2255 in the Central District of California.

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CERTIFICATE OF APPEALABILITY

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A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district

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court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v.

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Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a

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certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

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(a) In a habeas corpus proceeding or a proceeding under section 2255 before a
district judge, the final order shall be subject to review, on appeal, by the court
of appeals for the circuit in which the proceeding is held.

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(b) There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial
a person charged with a criminal offense against the United States, or to test the
validity of such person’s detention pending removal proceedings.

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(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from–

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(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional right.

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(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).

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If a court denies a petitioner’s petition, the court may only issue a certificate of appealability

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“if jurists of reason could disagree with the district court’s resolution of his constitutional claims or

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that jurists could conclude the issues presented are adequate to deserve encouragement to proceed

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further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the

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petitioner is not required to prove the merits of his case, he must demonstrate “something more than

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the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at

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338.

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In the present case, the Court finds that reasonable jurists would not find the Court’s

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determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or

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deserving of encouragement to proceed further. Petitioner has not made the required substantial

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showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a

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certificate of appealability.

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ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) The petition for writ of habeas corpus is DISMISSED;

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2) The Clerk of Court is DIRECTED to enter judgment and close the case; and

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3) The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.

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Dated:
6i0kij

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May 10, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE