Romero v. Rios

Filing 4

ORDER DISMISSING PETITION for Writ of Habeas Corpus Brought Pursuant to 28 U.S.C. 2241; ORDER DECLINING to Issue a Certificate of Appealability; and ORDER Directing the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 1/17/2012. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHE L. ROMERO,
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Petitioner,
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v.
H. RIOS, Warden,

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Respondent.

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1:11-cv—02022-SKO-HC
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS BROUGHT
PURSUANT TO 28 U.S.C. § 2241
(Doc. 1)
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
ORDER DIRECTING THE CLERK TO
CLOSE THE CASE

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Petitioner is a federal prisoner proceeding pro se in a
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habeas corpus action pursuant to 28 U.S.C. § 2241.

Pursuant to

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28 U.S.C. § 636(c)(1), Petitioner has consented to the
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jurisdiction of the United States Magistrate Judge to conduct all
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further proceedings in the case, including the entry of final
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judgment, by manifesting consent in a signed writing filed by
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Petitioner on December 27, 2011 (doc. 3).

Pending before the

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Court is the petition, which was filed on December 7, 2011.
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I.

Screening the Petition

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The Rules Governing Section 2254 Cases in the United States
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District Courts (Habeas Rules) are appropriately applied to
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proceedings undertaken pursuant to 28 U.S.C. § 2241.

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1(b).

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review of each petition for writ of habeas corpus.

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must summarily dismiss a petition "[i]f it plainly appears from

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the petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court....”

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O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also

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Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

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2(c) requires that a petition 1) specify all grounds of relief

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available to the Petitioner; 2) state the facts supporting each

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ground; and 3) state the relief requested.

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not sufficient; rather, the petition must state facts that point

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to a real possibility of constitutional error.

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Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at

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420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)).

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Allegations in a petition that are vague, conclusory, or palpably

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incredible are subject to summary dismissal.

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Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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Habeas Rule

Habeas Rule 4 requires the Court to make a preliminary
The Court

Habeas Rule 4;

Habeas Rule

Notice pleading is

Rule 4, Advisory

Hendricks v.

Further, the Court may dismiss a petition for writ of habeas

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corpus either on its own motion under Habeas Rule 4, pursuant to

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the respondent's motion to dismiss, or after an answer to the

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petition has been filed.

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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

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(9th Cir. 2001).

Advisory Committee Notes to Habeas Rule

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Here, Petitioner is an inmate of the United States

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Penitentiary at Atwater, California (USPA) who challenges his

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sentence of seventy-two (72) months imposed in case number 05-cr-

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00368-JRT-FLN-3 on March 14, 2007, and amended on November 20,
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2008, by the United States District Court for the District of

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Minnesota upon Petitioner’s conviction of aiding and abetting

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arson, possession of a firearm, illegal manufacture of a firearm,

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and possession of a firearm without a serial number.

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Petitioner raises two grounds in the petition: 1) Petitioner is

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entitled to relief with respect to the restitution ordered by the

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sentencing court because his co-defendant received such relief in

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an appeal brought by the co-defendant; and 2) the sentence of

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seventy-two months imposed on Petitioner increased his overall

(Pet. 2.)

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prison stay by five years, which was contrary to the plea

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agreement for fifteen years that Petitioner entered into in the

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sentencing court.

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(Id. at 3.)

Petitioner admits that both issues he raises are reviewable

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only by the District Court, and not by the Bureau of

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Prisons (BOP).

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II.

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A federal prisoner who wishes to challenge his conviction or

(Pet. 3.)

Analysis

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sentence on the grounds it was imposed in violation of the

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Constitution or laws of the United States or was otherwise

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subject to collateral attack 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.

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§ 2255.

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(9th Cir. 2006); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.

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1988).

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where the defendant was sentenced because only the sentencing

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court has jurisdiction.

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(9th Cir. 2000); Tripati, 843 F.2d at 1163.

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prisoner may not collaterally attack a federal conviction or

28 U.S.C. § 2255; Stephens v. Herrera, 464 F.3d 895, 897

In such cases, the motion must be filed in the district

Hernandez v. Campbell, 204 F.3d 861, 864

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Generally, a

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sentence by way of a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2241.

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897 (9th Cir. 2006);

Stephens v. Herrera, 464 F.3d 895,

Tripati, 843 F.2d at 1162.

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In contrast, a federal prisoner challenging the manner,

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location, or conditions of that sentence's execution must bring a

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petition for writ of habeas corpus under 28 U.S.C. § 2241.

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v. United States, 610 F.2d 672, 677 (9th Cir. 1990).

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Brown

A federal prisoner authorized to seek relief under § 2255

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may seek relief under § 2241 only if he can show that the remedy

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available under § 2255 is "inadequate or ineffective to test the

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legality of his detention."

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297, 299 (9th Cir. 1997) (quoting § 2255).

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little guidance from any court on when § 2255 is an inadequate or

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ineffective remedy, in the Ninth Circuit it is recognized that

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the exception is narrow.

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(9th Cir. 1999) (dismissal of a successive motion pursuant to

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§ 2255 did not render such motion procedure an ineffective or

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inadequate remedy so as to authorize a federal prisoner to seek

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habeas relief); Aronson v. May, 85 S.Ct. 3, 5 (1964) (denial of a

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prior § 2255 motion is insufficient to render § 2255 inadequate);

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Tripati, 843 F.2d at 1162-63 (9th Cir. 1988) (noting that a

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petitioner's fears of bias or unequal treatment do not render a

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§ 2255 petition inadequate); see, United States v. Valdez-

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Pacheco, 237 F.3d 1077 (9th Cir. 2001) (procedural requirements

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of § 2255 may not be circumvented by filing a petition for writ

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of audita querela pursuant to the All Writs Act, 28 U.S.C.

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§ 1651).

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is inadequate or ineffective.

United States v. Pirro, 104 F.3d
Although there is

Id; Moore v. Reno, 185 F.3d 1054, 1055

The burden is on the petitioner to show that the remedy
Redfield v. United States, 315
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F.2d 76, 83 (9th Cir. 1963).

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to § 2241 fails to meet his burden to demonstrate that the § 2255

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remedy is inadequate or ineffective, then the § 2241 petition

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will be dismissed for lack of jurisdiction.

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F.3d 1057, 1061 (9th Cir. 2003).

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If a petitioner proceeding pursuant

Ivy v. Pontesso, 328

In this case, Petitioner challenges the underlying sentence

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imposed on him because of the sentencing court’s choice of term

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and its determination of the amount of restitution Petitioner was

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ordered to pay.

Because Petitioner is alleging errors in his

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sentence, and not errors in the administration of his sentence,

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the Court concludes that Petitioner is not entitled to relief

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under § 2241.

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In addition, Petitioner makes no claim that § 2255 is

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inadequate or ineffective.

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his claims in federal court, he must do so by way of a motion to

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vacate or set aside pursuant to 28 U.S.C. § 2255.1

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Should the Petitioner wish to pursue

The Court concludes that the petition must be dismissed for
lack of jurisdiction.

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III.

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Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

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appealability, an appeal may not be taken to the Court of Appeals

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from the final order in a proceeding under section 2255.

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U.S.C. § 2253(c)(1)(B); Hohn v. United States, 524 U.S. 236, 239-

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40 (1998).

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pursuant to 28 U.S.C. § 2241, but which is really a successive

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Appeal from a proceeding that is nominally undertaken

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A petition for writ of habeas corpus pursuant to § 2255 must be filed in the court where the petitioner was
originally sentenced. In this case, Petitioner challenges convictions and sentences adjudicated in the United States
District Court for the District of Minnesota.

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application under § 2255, requires a certificate of

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appealability.

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2001).

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certificate of appealability.

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Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir.

The Court will therefore consider whether to issue a

It appears from the face of Petitioner’s § 2241 petition

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that Petitioner is raising claims attacking only the legality of

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his sentence, and not the execution of his sentence.

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A certificate of appealability may issue only if the
applicant makes a substantial showing of the denial of a

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constitutional right.

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petitioner must show that reasonable jurists could debate whether

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the petition should have been resolved in a different manner or

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that the issues presented were adequate to deserve encouragement

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to proceed further.

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(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

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certificate should issue if the Petitioner shows that jurists of

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reason would find it debatable whether the petition states a

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valid claim of the denial of a constitutional right and that

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jurists of reason would find it debatable whether the district

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court was correct in any procedural ruling.

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529 U.S. 473, 483-84 (2000).

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§ 2253(c)(2).

Under this standard, a

Miller-El v. Cockrell, 537 U.S. at 336
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Slack v. McDaniel,

In determining this issue, a court conducts an overview of

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the claims in the habeas petition, generally assesses their

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merits, and determines whether the resolution was debatable among

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jurists of reason or wrong.

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applicant to show more than an absence of frivolity or the

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existence of mere good faith; however, it is not necessary for an

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applicant to show that the appeal will succeed.

Id.

It is necessary for an

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Miller-El v.

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Cockrell, 537 U.S. at 338.

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A district court must issue or deny a certificate of

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appealability when it enters a final order adverse to the

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applicant.

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Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could

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debate whether the petition should have been resolved in a

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different manner.

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of the denial of a constitutional right or other basis for relief

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pursuant to § 2241.

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Petitioner has not made a substantial showing

Accordingly, the Court will decline to issue a certificate
of appealability.

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IV.

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Accordingly, it is ORDERED that:

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1)

Disposition

The petition for writ of habeas corpus is DISMISSED for

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lack of jurisdiction because the petition does not allege grounds

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that would entitle Petitioner to relief under 28 U.S.C. § 2241;

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and

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2)

appealability; and

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The Court DECLINES to issue a certificate of

3) The Clerk is DIRECTED to close the action because this
order terminates the proceeding in its entirety.

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IT IS SO ORDERED.

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Dated:
ie14hj

January 17, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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