Tronco-Ramirez v. Mosley
Filing
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ORDER OF DISMISSAL: For the reasons stated in the order, this Petition for habeas relief is dismissed as frivolous. Further, to the extent the Petition can be construed as a § 2255 motion, it is dismissed for lack of jurisdiction. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on December 11, 2014.(SP)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
RAUL TRONCO-RAMIREZ, #15674-084
VERSUS
PETITIONER
CIVIL ACTION NO. 3:14-cv-700-DPJ-FKB
WARDEN BONITA MOSLEY
RESPONDENT
ORDER OF DISMISSAL
This matter is before the Court, sua sponte, for consideration of dismissal. Petitioner
Raul Tronco-Ramirez is a federal inmate presently incarcerated at the Federal Correctional
Complex in Yazoo City, Mississippi. He filed this pro se Petition for habeas corpus relief
pursuant to 28 U.S.C. § 2241. After reviewing the Petition [1] and Response [5], in conjunction
with the relevant legal authority, the Court concludes that this case should be dismissed.
I.
Background
On November 1, 2011, in the United States District Court for the Western District of
Virginia, Tronco-Ramirez pled guilty to and was convicted of: (1) conspiracy to distribute 500
grams or more of a mixture and substance containing a detectable amount of methamphetamine
and 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. § 846; (2)
possession, with intent to distribute, of 50 grams or more of actual methamphetamine, in
violation of 21 U.S.C. § 841; and (3) possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924 (c). United States v. Tronco-Ramirez, Crim. Action No.
5:10-cr-28 (W.D. Va. 2011). The court sentenced Tronco-Ramirez to serve 300 months in prison
and five years of supervised release. His convictions and sentences were affirmed by the Fourth
Circuit Court of Appeals. United States v. Tronco-Ramirez, No. 11-5215 (4th Cir. 2012). And
the sentencing court thereafter denied his motion to vacate pursuant to 28 U.S.C. § 2255 on May
21, 2013. The Fourth Circuit likewise denied his request for a certificate of appealability. See
Tronco-Ramirez v. United States, Civ. Action No. 5:12-cv-80534 (W.D. Va. 2013), appeal
dismissed, No. 13-6926 (4th Cir. 2013).
Tronco-Ramirez now claims that he is entitled to habeas relief because he is “actually
innocent of the 21 U.S.C. § 924(c) [ ] conviction” because the “trading of guns does not comport
to the use or carry of a firearm in furtherance of a drug trafficking crime.” Pet. [1] at 6-7. He
argues that his 300-month sentence is unreasonable and the correct sentencing guideline range is
108 to 135 months. Resp. [5] at 1-2. Tronco-Ramirez therefore asks this Court to vacate his
300-month sentence and re-sentence him within the guideline range that he believes is
applicable. Id.; Pet. [1] at 8.
II.
Analysis
A petitioner may attack the manner in which his sentence is being executed in the district
court with jurisdiction over his custodian, pursuant to 28 U.S.C. § 2241. United States v. Cleto,
956 F.2d 83, 84 (5th Cir. 1992). But a motion filed pursuant to 28 U.S.C. § 2255 “provides the
primary means of collateral attack on a federal sentence.” Pack v. Yusuff, 218 F.3d 448, 451 (5th
Cir. 2000). Thus the proper vehicle for challenging errors that “occurred at or prior to
sentencing” is a motion pursuant to § 2255. Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir.
1990).
There is, however, an exception to this rule. “Under the savings clause of § 2255, if the
petitioner can show that § 2255 provides him an inadequate or ineffective remedy, he may
proceed by way of § 2241.” Wesson v. U.S. Penitentiary, 305 F.3d 343, 347 (5th Cir. 2002). To
meet the “inadequate or ineffective” test, an inmate “must show that (1) his claims are based on a
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retroactively applicable Supreme Court decision which establishes that he may have been
convicted of a nonexistent offense, and (2) his claims were foreclosed by circuit law at the time
when the claims should have been raised in his trial, appeal, or first § 2255 motion.” Wesson,
305 F.3d at 347 (citing Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001)). The
inmate bears the burden of demonstrating that the § 2255 remedy is inadequate or ineffective to
test the legality of his detention. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
Tronco-Ramirez does not meet this test. He does not rely on a retroactively applicable
Supreme Court decision which establishes that he may have been convicted of a nonexistent
offense, nor does he assert that his claims were foreclosed by circuit law at the time when the
claims should have been raised in his trial, appeal, or first § 2255 motion. At best, he contends
that the § 2255 remedy is inadequate or ineffective because he is barred from filing a § 2255
motion by the statute of limitations and because his prior § 2255 motion was denied. But a
petitioner’s inability to file a § 2255 motion does not render the remedy under § 2255 inadequate
or ineffective as necessary to proceed under the savings clause. Bell v. Holder, 488 F. App’x
822, 823 (5th Cir. 2012) (finding inability to file § 2255 motion based on statute of limitations
does not render § 2255 remedy inadequate or ineffective); Tolliver v. Dobre, 211 F.3d 876, 878
(5th Cir. 2000) (holding prior unsuccessful § 2255 motion or inability to file a second or
successive § 2255 motion does not render remedy inadequate or ineffective). The Court
concludes that Tronco-Ramirez’s claims fail to satisfy the Reyes-Requena test, therefore, he
cannot proceed under the savings clause.
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III.
Conclusion
Since Tronco-Ramirez’s claims challenge the validity of his sentence and his claims do
not meet the stringent requirements of the savings clause, he will not be allowed to proceed with
this action for habeas corpus relief pursuant to § 2241. Accordingly, this Petition for habeas
relief is dismissed as frivolous. See Ojo vs. INS, 106 F.3d 680, 683 (5th Cir. 1997) (finding
inmate’s § 2241 petition asserting claims properly pursued under § 2255 to be “thoroughly
frivolous”). Further, to the extent the Petition can be construed as a § 2255 motion, it is
dismissed for lack of jurisdiction. 28 U.S.C. § 2255(a).
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons stated above,
this cause should be and is hereby dismissed with prejudice regarding the jurisdictional issue
only and dismissed without prejudice in all other respects. See Pack, 218 F.3d at 454. A
separate final judgment shall issue pursuant to Federal Rule of Civil Procedure 58.1
SO ORDERED AND ADJUDGED this the 11th day of December, 2014.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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certificate of appealability (COA) is not needed for a federal inmate to appeal the denial of
relief under 28 U.S.C. § 2241. See Castro Flores v. Dretke, 120 F. App’x 537, 538-39 (5th Cir. 2005).
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