Weeks-Katona v. Tews

Filing 7

ORDER DISMISSING PETITION WITH LEAVE TO AMEND by Judge Phyllis J. Hamilton denying 3 Motion ; denying 4 Motion (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 1/7/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JANICE WEEKS-KATONA,
Petitioner,

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vs.

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ORDER DISMISSING
PETITION WITH LEAVE TO
AMEND

RANDY TEWS,
Respondent.

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For the Northern District of California

United States District Court

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No. C 12-5723 PJH (PR)

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Petitioner, a federal prisoner incarcerated at F.C.I. Dublin has filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. She has paid the filing fee.

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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)). In contrast, a § 2241 habeas petition is the proper mechanism

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for a federal prisoner seeking to challenge the manner, location or conditions of the

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execution of the sentence. Hernandez, 204 F.3d at 864

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There is, however, an exception to that general rule. Under the "escape hatch" of §

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2255, a federal prisoner may file a § 2241 petition if, and only if, the remedy under § 2255

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is "inadequate or ineffective to test the legality of his detention." Id. (internal quotation

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marks omitted). We have held that 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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For the Northern District of California

United States District Court

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B.

Legal Claims
After reviewing this action, it is not clear the relief that petitioner seeks as the petition

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is confusing and rambling. Petitioner discusses a 1993 plea bargain that seems to have

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occurred in the Middle District of Florida and a 2012 incident in the District of Montana. It

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appears, though the court is not certain, that petitioner is seeking relief based on her plea

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and sentencing though she also describes the seizure of legal mail and harassment at her

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facility. It is not clear what transpired in the District of Montana. The petition will be

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dismissed with leave to amend for petitioner to more clearly describe the relief she seeks.

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CONCLUSION
1. The petition is DISMISSED with leave to amend in accordance with the standards

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set forth above. The amended petition must be filed no later than February 4, 2013, and

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carry the words AMENDED PETITION on the first page. Failure to amend within the

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designated time will result in the dismissal of these claims.

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2. The motions for clarification and joinder (Docket Nos. 3 and 4) are denied.

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3. Petitioner must keep the court informed of any change of address and must

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comply with the court's orders in a timely fashion. Failure to do so may result in the

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dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure

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41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable

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in habeas cases).
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IT IS SO ORDERED.
Dated:

January 7, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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G:\PRO-SE\PJH\HC.12\Weeks-Katona5723.dwlta.wpd

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For the Northern District of California

United States District Court

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