Southern v. USA
Filing
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ORDER DENYING SOUTHERN'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY. Signed by JUDGE LESLIE E. KOBAYASHI on 10/15/2014. The Court thus DENIES Souther n's § 2255 Motion. Further, since she has made no "substantial showing of the denial of a constitutional right," this Court DENIES a certificate of appealability. 28 U.S.C. § 2253(c)(2). This Court directs the Clerk& #039;s Office to send Southern a copy of the form for a 28 U.S.C. § 2241 petition with this order.If she chooses to pursue her request made in the § 2255 Motion, she should have her § 2241 petition filed in the United States District C ourt for the Northern District of Florida (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
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Plaintiff,
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vs.
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JODI MARIE SOUTHERN,
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Defendant.
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_____________________________ )
CR. NO. 11-00383-04 LEK
ORDER DENYING SOUTHERN’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
Before the Court is pro se Petitioner Jodi Marie
Southern’s (“Southern”) Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody
(“§ 2255 Motion”), filed on August 25, 2014.
[Dkt. no. 163.1]
After careful consideration of the motion, and the relevant legal
authority, Southern’s § 2255 Motion is HEREBY DENIED, and a
certificate of appealability is also DENIED, for the reasons set
forth below.
DISCUSSION
On May 12, 2014, Southern filed a form motion titled,
“Motion for Reconsideration, Pursuant to 18 USC §3742(e), PostSentencing Rehabilitation Programming” (“§ 3742(e) Motion”).
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The § 2255 Motion is filed both in United States v.
Southern, CR 11-00383 LEK, and Southern v. United States, CV 1400392 LEK-RLP. All citations related to the § 2255 Motion refer
to the filings in CR 11-00383.
[Dkt. no. 155.]
On May 21, 2014, this Court denied the § 3742(e)
Motion, finding that Southern had no basis for relief and that
the Court lacked jurisdiction under that subsection.
159.]
[Dkt. no.
The Court suggested, that if Southern was seeking relief
from this Court, she might “consider filing either a § 2255
motion or a [28 U.S.C.] § 2241 petition.”
[Id. at 3.]
Southern
has now brought the present motion under § 2255, and she includes
written descriptions of, in essence, how the conditions of her
incarceration are purportedly harming her, and the relief she
hopes to obtain.
[§ 2255 Motion at 4-5, 7, 12, 18-19.2]
It appears from these descriptions that Southern
challenges the conditions of her incarceration and requests that
the Court to shorten her sentence or provide home release because
of her health; she does not, however, challenge her conviction or
sentence.
She writes, “I am not asking for any other reason then
to have some relief off of my sentence.
judgment or sentence.”
I am not challenging the
[§ 2255 Motion at 12.]
Further on, she
explains, “I am seeking relief so that I may get better health
care . . . .”
[Id.]
28 U.S.C. § 2255 does not offer this type
of relief, and this Court has no jurisdiction to provide it.
2
The citations to page numbers in the § 2255 Motion, which
includes multiple documents that are not consecutively paginated,
refer to the Electronic Case Filing page numbers.
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28 U.S.C. § 2255 provides:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right
to be released upon the ground that the sentence
was imposed in violation of the Constitution or
laws of the United States, or that the court was
without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to
collateral attack, may move the court which
imposed the sentence to vacate, set aside or
correct the sentence.
“[Section] 2255 provides the exclusive procedural mechanism by
which a federal prisoner may test the legality of detention.”
United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011)
(emphasis added) (citation and internal quotation marks omitted).
This means that a prisoner may only bring a motion under § 2255
where she believes that she was wrongly convicted or sentenced.3
On the other hand, “‘petitions that challenge the
manner, location, or conditions of a sentence’s execution must be
brought pursuant to § 2241 in the custodial court.’”
Hermosillo-Enriquez v. Sanders, 413 F. App’x 994, 996 (9th Cir.
2011) (emphasis added) (quoting Hernandez v. Campbell, 204 F.3d
861, 864 (9th Cir. 2000)).
“[Section] 2241 petitions must be
3
A court may deny a § 2255 motion if “it plainly appears
from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief.” R.
4(b) Governing Section 2255 Proceedings. A court need not hold
an evidentiary hearing if the allegations are “palpably
incredible or patently frivolous” or if the issues can be
conclusively decided on the basis of the evidence in the record.
See Blackledge v. Allison, 431 U.S. 63, 76 (1977).
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filed in the district where the petitioner is confined, while §
2255 motions must be filed in the district where the petitioner
was sentenced.”
Muth v. Fondren, 676 F.3d 815, 818 (9th Cir.
2012) (citation omitted).
As described above, Southern appears to be challenging
the conditions of her confinement.
See also, e.g., § 2255 Motion
at 4 (she is “having medical issues” (Ground One)), 5 (she needs
“some consideration about [her] mental stability” (Ground Two)),
7 (she “need[s] some medical attention Prison isn’t providing”
(Ground Three)).
Thus, § 2255 cannot provide her relief since it
only allows this Court to consider the grounds for her conviction
or sentence.
See Washington, 653 F.3d at 1059.4
Although the Court acknowledges that “[p]ro se
complaints and motions from prisoners are to be liberally
construed,” United States v. Seesing, 234 F.3d 456, 462 (9th Cir.
2001), even if it did construe the motion as a petition under
§ 2241, it would not have jurisdiction over such a petition.
It
is true that this Court took Southern’s change of plea on
December 29, 2011, [dkt. no. 98 (Minutes),] and sentenced her on
May 2, 2012 [dkt. no. 141 (Minutes)].
Thus, this Court is the
“sentencing court” for purposes of relief.
4
But Southern writes
Moreover, even if the Court could construe this as a
proper motion under § 2255, it would be time-barred since it was
brought well over a year after final judgment, which was entered
on May 3, 2012 [dkt. no. 142]. See 28 U.S.C. § 2255(f).
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that she is confined at the Federal Correctional Institution in
Tallahassee, Florida.
[Id. at 1.]
Therefore, the United States
District Court for the Northern District of Florida is the one
with jurisdiction over a § 2241 petition.
This means that, if
the Court construed the § 2255 Motion as a § 2241 petition, this
Court would not have jurisdiction over it.
See, e.g., Thomas v.
United States, 50 F.3d 16 (9th Cir. 1995) (“only the sentencing
court has jurisdiction to consider challenges to a prisoner’s
conviction or sentence, whereas only the district court where the
prisoner is confined has jurisdiction to consider challenges to
the manner of execution of his sentence” (citations omitted)).
The Court thus DENIES Southern’s § 2255 Motion.
Further, since she has made no “substantial showing of the denial
of a constitutional right,” this Court DENIES a certificate of
appealability.
28 U.S.C. § 2253(c)(2).
CONCLUSION
On the basis of the foregoing, Southern’s Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody, filed August 25, 2014, is HEREBY
DENIED.
This Court directs the Clerk’s Office to send Southern a
copy of the form for a 28 U.S.C. § 2241 petition with this order.
If she chooses to pursue her request made in the § 2255 Motion,
she should have her § 2241 petition filed in the United States
District Court for the Northern District of Florida.
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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 15, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
UNITED STATES OF AMERICA VS. JODI MARIE SOUTHERN; CR. NO. 1100383-04 LEK; ORDER DENYING SOUTHERN’S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN
FEDERAL CUSTODY
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