Fells v. United States of America

Filing 5

ORDER DISMISSING PETITION for Writ of Habeas Corpus WITH LEAVE TO AMEND signed by Magistrate Judge Barbara A. McAuliffe on 6/5/2015. First Amended Petition due within thirty (30) days. (Attachments: # 1 2241 Form, # 2 2255 Form). (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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QASIM SHANE FELLS,

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Petitioner,

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v.
UNITED STATES OF AMERICA,

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Case No. 1:15-cv-00552-BAM HC
ORDER DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS WITH
LEAVE TO AMEND PETITION
DEADLINE: THIRTY (30) DAYS AFTER
SERVICE OF THIS ORDER

Respondent.
ORDER DIRECTING THE CLERK TO
SEND PETITIONER A BLANK PETITIONS
FOR WRIT OF HABEAS CORPUS (§ 2241
and § 2255)

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On April 10, 2015, Petitioner, a federal prisoner proceeding pro se, filed a petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner seeks an order vacating his sentence in

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light of the U.S. Supreme Court's holding in Rosemond v. United States, 134 S.Ct. 1240 (2014).

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Because Petitioner either (1) erroneously seeks to challenge his original sentence under 28 U.S.C. §
2241 rather than 28 U.S.C. § 2255 or (2) fails to allege facts by which the Court can conclude that

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he is entitled to seek relief under § 2241 because the remedy available under § 2255 is inadequate
or ineffective, the Court dismisses his petition with leave to amend.
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DISCUSSION
A federal prisoner who seeks to challenge the validity or constitutionality of his federal

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conviction or sentence must do so by filing 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, 1161-62 (9th Cir. 1988); Stephens v.

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Herrera, 464 F.3d 895, 897 ( 9th Cir. 2006). 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

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or sentence using a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, as Petitioner
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seeks to do in this case. Tripati, 843 F.2d at 1162.

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A prisoner challenging the manner, location, or conditions of the execution of his sentence

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may bring a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the district in which he

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is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir.

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2000). But a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner
may test the legality of his detention. Stephens, 464 F.3d at 897. Restrictions on the availability of

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a § 2255 motion cannot be avoided simply by filing a petition under 28 U.S.C. § 2241. Id.
If a federal prisoner can demonstrate that the remedy available under § 2255 is "inadequate

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or ineffective to test the validity of his detention," however, he may nonetheless seek relief under §

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2241. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting 28 U.S.C. § 2255);

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Hernandez, 204 F.3d at 864-65. The exception is very narrow. Ivy v. Pontesso, 328 F.3d 1057,

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1059 (9th Cir. 2003). The remedy under § 2255 usually will not be deemed inadequate or

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ineffective merely because a prior § 2255 motion was denied or because a remedy under § 2255 is
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procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964); Tripati, 843 F.2d at 1162-63;

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Williams v. Heritage, 250 F.2d 390, 390 (9th Cir. 1957); Hildebrandt v. Swope, 229 F.2d 582, 583

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(9th Cir. 1956). Section 2255 only provides an inadequate and ineffective remedy, permitting a

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petitioner to proceed under § 2241, when (1) the petitioner makes an claim of actual innocence and

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(2) has never had an unobstructed procedural shot at presenting the claim. Stephens, 464 F.3d at

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

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

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Not only has Petitioner not demonstrated that § 2255 constitutes an inadequate or

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ineffective remedy for raising his claims, his petition is so vague and incomplete that the Court is

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unable to determine which statutory scheme is most appropriate or whether Petitioner could

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conceivably proceed with a petition brought pursuant to § 2241. Accordingly, the Court dismisses
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the petition with leave to amend in accordance with the discussion above. If Petitioner elects to

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proceed under § 2255, he is reminded to file the petition in the federal district court in which he was

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convicted and sentenced.

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CONCLUSION AND ORDER

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The Court hereby ORDERS:

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The Petition for Writ of Habeas Corpus is DISMISSED with leave to amend.

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If Petitioner elects to proceed with a petition pursuant to 28 U.S.C. § 2241, he shall

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file a first amended petition in compliance with this order no later than thirty (30)

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days from the date of service of this order.

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3.

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If Petitioner elects to proceed with a petition pursuant to 28 U.S.C. § 2255, he shall
file such petition in the federal district court in which he was convicted and

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sentenced.

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4.

The Clerk of Court is DIRECTED to send Petitioner form petitions for actions to be

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brought under both 28 U.S.C. § 2255 and 28 U.S.C. § 2241.

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5.

If Petitioner fails to file a first amended petition in this district no later than thirty

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(30) days from the date of service of this order, this Court may dismiss this matter,

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without prejudice, for failure to prosecute.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

June 5, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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