Lerma-Duenas v. Atkinson

Filing 3

ORDER Denying Petition for Writ of Habeas Corpus. A certificate of appealability is denied. Signed by Judge Larry Alan Burns on 5/17/13. (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JORGE L. LERMA-DUENAS,

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CASE NO. 13cv1045-LAB (KSC)
Petitioner,

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

vs.
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KENNY ATKINSON,

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Respondent.

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PetitionerJorge Lerma-Duenas was extradited from Mexico to answer charges of

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robbery, kidnapping, and extortion in this Court. He pleaded guilty and was sentenced to a

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term of 37 months. As a result of his guilty plea, he was charged with a violation of

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supervised release in case 90cr608-JLS, United States v. Lerma-Duenas. He pleaded guilty

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to that charge, and on January 27, 2012, his supervised release was revoked. He was

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sentenced to a term of sixteen months to run consecutively to the sentence imposed in

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90cr710-JLS, and is still in federal custody. He has now filed a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2241, challenging the revocation of supervised release. He

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claims that he should not have been charged with violating the terms of his supervised

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release, because the doctrine of specialty forbids it.

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13cv1045

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Because Lerma-Duenas is challenging his sentence, the Court construes his petition

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under § 2241 as a motion under 28 U.S.C. § 2255.1 See Stephens v. Herrera, 464 F.3d 895,

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897 (9th Cir. 2006) (generally, a motion under § 2255 is the exclusive means by which a

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federal prisoner may test the legality of his detention).

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For several reasons, Lerma-Duenas’ motion must be denied. It is untimely, having

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been filed well over a year after his supervised release was revoked. See § 2254(f). In

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addition, he pleaded guilty to the violation. The doctrine of specialty gives rise to a defense

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based on lack of personal jurisdiction, and it is subject to waiver if not timely raised. See

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United States v. Anderson, 472 F.3d 662, 668 (9th Cir. 2006); Fed. R. Crim. P. 12(b)(3) and

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(e). Compare United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996) (defense of lack

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of personal jurisdiction was waived by guilty plea).

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Even if Lerma-Duenas could raise this defense now, the doctrine would be of no help

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to him. Lerma-Duenas’ supervised release was revoked for the selfsame conduct for which

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he was extradited. See United States v. Andonian, 29 F.3d 1432, 1438 (9th Cir. 1994)

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(doctrine of specialty requires that prosecution be based on the same facts as those set forth

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in the extradiction request). Furthermore, revocation of supervised release does not count

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as a new prosecution for purposes of the doctrine. See United States v. Hollenbeck, 31 Fed.

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Appx. 836 (5th Cir. 2002) (per curiam) (doctrine of specialty did not bar district court from

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revoking supervised release of extradicted defendant).

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The petition is DENIED. Because Lerma-Duenas does not rely on any constitutionally-

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protected right, a certificate of appealability is also DENIED. See United States v. Mikelsi,

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If this really were a petition under § 2241, it should have been filed in the District of
South Carolina, where Lerma-Duenas is in custody. See Hernandez v. Campbell, 204 F.3d
861, 864 (9th Cir. 2000) (per curiam). But because it is in fact a § 2255 motion, it was
properly filed in this Court, where Lerma-Duenas was sentenced. See id.
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236 F.3d 550, 551 (9th Cir. 2001) (citing 28 U.S.C. § 2253(c)(2)) (to obtain a certificate of

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appealability, an applicant must show violation of a constitutional right).

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IT IS SO ORDERED.
DATED: May 17, 2013

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HONORABLE LARRY ALAN BURNS
United States District Judge

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