Morales-Dominguez v. Gill

Filing 7

FINDINGS And RECOMMENDATIONS Regarding Petition For Writ Of Habeas Corpus Pursuant To 28 U.S.C. 2241 (Doc. 1 ), signed by Magistrate Judge Gary S. Austin on 11/13/2012. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/17/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JULIO C. MORALES-DOMINGUEZ,
aka CESAR GUZMAN,

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1:12-CV-01732 LJO GSA HC

Petitioner,

FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS PURSUANT TO 28
U.S.C. § 2241

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v.
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GILL, Warden,

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Respondent.
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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.

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Petitioner filed the instant petition for writ of habeas corpus on October 24, 2012. He is

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challenging his 2010 conviction in the United States District Court for the Western District of Texas

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of illegal re-entry and violation of probation. Petitioner is in the custody of the Bureau of Prisons at

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the Federal Correctional Institution located in Mendota, California.

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DISCUSSION

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A federal prisoner who wishes to challenge the validity or constitutionality of his conviction
or sentence must do so by way of a motion to vacate, set aside, or correct the sentence under 28

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U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); Thompson v. Smith, 719

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

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

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Tripati, 843 F.2d at 1163.

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way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States,

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929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616

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

A prisoner may not collaterally attack a federal conviction or sentence by

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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 (3rd

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Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v. United

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

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A federal prisoner authorized to seek relief under § 2255 may seek relief under § 2241 if he

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can show that the remedy available under § 2255 is "inadequate or ineffective to test the validity of

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his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting § 2255). Although

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there is little guidance from any court on when § 2255 is an inadequate or ineffective remedy, the

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Ninth Circuit has recognized that it is a very narrow exception. Id; Holland v. Pontesso, 234 F.3d

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1277 (9th Cir. 2000) (Section 2255 not inadequate or ineffective because Petitioner misses statute of

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limitations); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (Dismissal of a successive motion

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attacking sentence did not render such motion procedure an ineffective or inadequate remedy, so as

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to authorize federal prisoner to seek habeas relief); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s

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denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 F.2d at

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1162-63 (9th Cir.1988) (a petitioner's fears bias or unequal treatment do not render a § 2255 petition

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inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229 F.2d 582

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(9th Cir.1956); see, United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 2001) (procedural

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requirements of § 2255 may not be circumvented by invoking the All Writs Act, 28 U.S.C. § 1651).

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The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v.

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United States, 315 F.2d 76, 83 (9th Cir. 1963).

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In this case, Petitioner challenges the underlying conviction and sentence. Because he is

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

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the Court finds that Petitioner is not entitled to relief under § 2241, and his petition should be

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dismissed. In addition, Petitioner makes no claim that § 2255 is inadequate or ineffective. Should

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the Petitioner wish to pursue his claims in federal court, he must do so by way of a motion to vacate

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or set aside pursuant to 28 U.S.C. § 2255.1 The petition must be dismissed.

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RECOMMENDATION

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Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be

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DISMISSED because the petition does not allege grounds that would entitle Petitioner to relief under

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28 U.S.C. § 2241.

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These Findings and Recommendations are submitted to the Honorable Lawrence J. O’Neill,

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United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule

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304 of the Local Rules of Practice for the United States District Court, Eastern District of California.

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Within thirty (30) days after being served with a copy, Petitioner may file written objections with the

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Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

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§ 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
6i0kij

November 13, 2012

/s/ Gary S. Austin
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 convictions and sentences adjudicated in the U.S. District Court for the W estern
District of Texas.

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