Aros v. Hollingsworth

Filing 13

MEMORANDUM OPINION AND ORDER Dismissing 1 Petition for Writ of Habeas Corpus pursuant to 28 USC 2241 for lack of jurisdiction. Signed by U. S. District Judge Lawrence L. Piersol on 7/3/12. (DJP)

FILED

UNITED STATES DISTRICT COURT

JUL 03 2012

DISTRICT OF SOUTH DAKOTA

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SOUTHERN DIVISION

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DANIEL RICHARD AROS,
CIV 11-4136
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Petitioner,
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MEMORANDUM OPINION
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-vs­
AND ORDER DISMISSING PETITION
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JORDAN R. HOLLINGSWORTH,
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WARDEN - FPC YANKTON,
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Respondent.
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Petitioner Daniel Richard Aros, a prisoner at the Federal Prison Camp in Yankton, South
Dakota, has petitioned this Court pursuant to 28 U.S.C. § 2241 for habeas corpus relief contending
that the trial court in the District of Wyoming wrongly calculated his sentence in light of a 2007
clarifYing amendment to the Sentencing Guidelines that became effective after Aros was originally
sentenced. In reply to Respondent's argument that the proper procedure to pursue the correction
sought by Aros is 28 U.S.c. § 2255, Aros contends that "he is actually innocent of his 2D.l drug
quantity base offense level 36" based on the clarifYing amendment, and that relief must be granted
under 28 U.S.c. § 2241 to avoid a miscarriage ofjustice.

On October 15, 2002, Aros was convicted by a JUry of conspiracy to traffic in
methamphetamine. Aros's conviction was affirmed on November 5, 2003. See United States v.

Martinez, 77 Fed. Appx. 490 (10th Cir. 2003). On January 13, 2005, Aros filed his first motion
under 28 U.S.C. § 2255, which the district court denied in Aprilof2006. On February 16, 2007, the
Tenth Circuit denied Aros a certificate of appealability on his first 28 U.S.c. § 2255 motion.
Although Aros did not file a request under 28 U. S. C. § 2255(h) with the Tenth Circuit asking
that a second or successive Section 2255 motion be certified, in February of 2011, Aros filed a
motion with the Wyoming district court seeking permission to file a second or successive § 2255

motion seeking substantially the same relief that he seeks in the 28 U.S.C. § 2241 petition before this
Court. That motion to file a second or successive § 2255 motion was denied by the Wyoming district
court on May 12, 2011.
Aros has not presented any persuasive authority that this Court has jurisdiction to provide the
reliefhe requests under 28 U. S. C. § 2241. Although Aros may be able to move the sentencing court
for relief under 18 U.S.C. § 3582(c)(2),1 the sentencing court, not this Court, has the authority to
make that determination. See Miner v. Roy, 2011 WL 5416311 at *7 n.7 (S.D.Tex Nov. 8, 2011)
("The more appropriate vehicle for collaterally attacking a sentence based on a clarifYing amendment
is a motion pursuant to 18 U.S.C. § 3582(c)(2).").
IT IS HEREBY ORDERED that Aros' petition under 28 U.S.c. § 2241 is dismissed for lack
ofjurisdiction.

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Dated this _,,_ day of July, 2012.
BY THE COURT:

l~rso~fuA~
United States District Judge
ATTEST:
JOSEPH

S, CLffRK

By:~~~pM
DEPUTY

118 U.S.C. § 3582(c)(2) provides that "in the case ofa defendant who has been sentenced
to a term of imprisonment based on a sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. 994(0), upon motion of the defendant or the
Director ofthe Bureau of Prisons, or on its own motion, the court may reduce the term of
imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission."

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