Jones, Jr. v. Allen

Filing 9

ORDER: The Motion to Dismiss the Petition (ECF No. 8 ) is Granted. The Petition (ECF No. 1 ) is Dismissed Without Prejudice. Signed by Judge William Q. Hayes on 04/12/2018.(All non-registered users served via U.S. Mail Service)(ajs)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIE JONES, JR., Case No.: 18-cv-0337-WQH-KSC Plaintiff, 12 13 v. 14 ORDER ROBERT O. GARCIA, JR., Defendant. 15 16 HAYES, Judge: 17 On February 12, 2018, Petitioner Willie Jones, Jr. filed a Petition for a Writ of 18 Habeas Corpus under 28 U.S.C. § 2241 (ECF No. 1) (the “Petition”). On April 4, 2018, 19 the United States filed a Response and Motion to Dismiss the Petition. (ECF No. 8). 20 On June 23, 2016, Jones was indicted on three counts of transportation of aliens in 21 violation of 8 U.S.C. 1324(a)(1)(A)(ii). United States v. Jones, 16-cr-1448-WQH, ECF 22 No. 13. On November 8, 2017, a jury found Jones guilty of all three counts. United States 23 v. Jones, 16-cr-1448-WQH, ECF No. 123. On February 27, 2018, this Court sentenced 24 Jones to twenty-one months in custody and three years of supervised release. United States 25 v. Jones, 16-cr-1448-WQH, ECF No. 163. On March 2, 2018, Jones filed an Amended 26 Notice of Appeal “to the United States Court of Appeals for the Ninth Circuit from this 27 Court’s judgment (entered on February 28, 2018), the jury’s verdict (entered on November 28 1 18-cv-0337-WQH-KSC 1 8, 2017), and the sentence that this Court imposed on February 27, 2018.” United States 2 v. Jones, 16-cr-1448-WQH, ECF No. 167. 3 The Petition brought under 28 U.S.C. § 2241 challenges “[t]he validity of [Jones’s] 4 conviction or sentence as imposed.” (ECF No. 1 at 2). However, “[i]n general, [28 U.S.C.] 5 § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test 6 the legality of detention.” Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). The 7 Court will construe the Petition as a petition for habeas corpus under § 2255 because the 8 Petition challenges “[t]he validity of [Jones’s] conviction or sentence as imposed.” (ECF 9 No. 1 at 2). 10 The Court of Appeals has instructed district courts to refrain from hearing a petition 11 brought under § 2255 until after petitioner has exhausted his right to direct appellate 12 review. United States v. LaFromboise, 427 F.3d 680, 686 n.9 (9th Cir. 2005), amended, 13 No. 03-35853, 2005 WL 3312694 (9th Cir. Dec. 8, 2005). Jones’s appeal of his judgment, 14 verdict, and sentence is currently pending before the Court of Appeals. See United States 15 v. Jones, 16-cr-1448-WQH, ECF No. 167. Accordingly, the Court declines to consider the 16 Petition at this time. 17 18 19 The Motion to Dismiss the Petition (ECF No. 8) is GRANTED. The Petition (ECF No. 1) is DISMISSED WITHOUT PREJUDICE. Dated: April 12, 2018 20 21 22 23 24 25 26 27 28 2 18-cv-0337-WQH-KSC

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