Noriega v. Iwuagwu

Filing 15

ORDER DISMISSING PETITION. Signed by Judge Nandor J. Vadas on 3/28/2016. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 3/29/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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SANDRA CRUZ NORIEGA,
Petitioner,

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vs.

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ORDER OF DISMISSAL

CHARLESTON IWUAGWU,
Respondent.

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For the Northern District of California

United States District Court

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No. C 15-4019 NJV (PR)

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Petitioner, a federal prisoner incarcerated at F.C.I. Dublin filed a pro se petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2241. The original petition was dismissed

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with leave to amend and petitioner has filed an amended petition.

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DISCUSSION
A.

Standard of Review
A district court must determine at the outset whether a petition filed by a federal

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prisoner is pursuant to 28 U.S.C. § 2241 or 28 U.S.C. § 2255, because congress has given

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jurisdiction over these petitions to different courts. Hernandez v. Campbell, 204 F.3d 861,

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865-66 (9th Cir. 2000). A petition under § 2241 must be heard in the district of

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confinement, whereas if the petition is properly brought under § 2255, it must be heard by

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the sentencing court. Id. at 865.

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A federal prisoner who seeks to challenge the legality of confinement must generally

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rely on a § 2255 motion to do so. See Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.

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2006) ("The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by

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which a federal prisoner may test the legality of his detention, and that restrictions on the

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availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. §

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2241." (citation omitted)). There is, however, an exception to that general rule. Under the

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"escape hatch" of § 2255, a federal prisoner may file a § 2241 petition if, and only if, the

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remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." Id.

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(internal quotation marks omitted). A prisoner may file a § 2241 petition under the escape

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hatch when the prisoner "(1) makes a claim of actual innocence, and (2) has not had an

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unobstructed procedural shot at presenting that claim." Id. at 898 (internal quotation marks

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omitted).

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B.

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Legal Claims
Petitioner entered a guilty plea in the District of Arizona on October 11, 2012. See

United States v. Cruz, et. al, 11-cr-2729 DCB-JR. The written plea agreement specified

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For the Northern District of California

United States District Court

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that there was no agreement whether the sentence would be consecutive or concurrent to

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a separate sentence arising from a case in the Western District of Texas. Docket No. 289

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at 3-4 in 11-cr-2729. On February 27, 2013, she was sentenced to 36 months on count 1

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and 48 months on count 2, and the term to run concurrent on both counts. Docket No. 574

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at 9 in 11-cr-2729. However, the Court ordered the sentence to run consecutive to her

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sentence in the Western District of Texas. Id.

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Petitioner argues that it was only when she was preparing to be released from the

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sentence from the Western District of Texas that she learned the sentence from the District

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of Arizona was consecutive and not concurrent. However, the sentencing transcript

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indicates that Petitioner was present when sentence was imposed and the Court

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specifically noted that the 48 months was to run consecutive to the sentence in Texas.

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Docket No. 574 at 2-3, 8 in 11-cr-2729.

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To the extent Petitioner challenges the sentence as improper under the guidelines,

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this argument does not raise a claim of actual innocence to qualify for the escape hatch of

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§ 2241. See Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) (petitioner's escape

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hatch argument that he should not have qualified as a career offender in sentencing is not

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one of actual innocence). Moreover, petitioner has not argued that she did not have an

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unobstructed procedural shot at presenting this claim. To the extent Petitioner seeks to
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challenge the legality of her confinement and raise claims regarding her sentence or to

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argue that counsel was ineffective with respect to her plea, she must file a § 2255 petition

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in the District of Arizona.

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CONCLUSION
The petition is DISMISSED for the reasons set forth above, therefore the motion for

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discovery and an evidentiary hearing (Docket No. 3) is DENIED. Because reasonable

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jurists would not find the result here debatable, a certificate of appealability (“COA”) is

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DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for COA).

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: March 29, 2016.
NANDOR J. VADAS
United States Magistrate Judge

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