The opinion of the court was delivered by: Claudia Wilken United States District Judge
Lavonne Roach, a prisoner at the Federal Correctional Institution in Dublin, California, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging a 1998 sentence from the United States District Court for the District of South Dakota in United States v. Roach, No. CR-50041-001. Roach claims that her sentence is illegal under the rationale of Blakely v. Washington, 124 S.Ct. 2531, 2537 (2004).
In general, 28 U.S.C. § 2255 provides the exclusive mechanism by which a federal prisoner may contest collaterally the legality of her conviction and/or sentence. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Such a prisoner must file a motion to vacate, set aside or correct the sentence under § 2255 in the sentencing court. See Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). However, a federal prisoner may file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where her remedy under § 2255 is "'inadequate or ineffective to test the legality of his detention.'" Hernandez, 204 F.3d at 864-65 (quoting 28 U.S.C. § 2255).
Roach alleges that she filed an unsuccessful § 2255 motion in the Western Division of the District of South Dakota. An evidentiary hearing was held and her sentence was affirmed on April 9, 2001, in case number CV-99-5102. Roach states that she has not filed a successive § 2225 motion in the District of South Dakota because "she does not qualify for this relief under the rules of 28 U.S.C. § 2255/§ 2244(1) or (2)," that is, the successive petition prohibition.
This effort to show that § 2255 is "inadequate or ineffective to test the legality of [Roach's] detention" fails. The Ninth Circuit has made clear that the successive petition provision of the AEDPA does not render § 2255 inadequate or ineffective. See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (dismissal of § 2255 motion as successive under AEDPA does not render federal habeas relief under § 2255 an inadequate or ineffective remedy); see also Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) ("§ 2241 is not available under the inadequate-or-ineffective-remedy escape hatch of § 2255 merely because the court of appeals refuses to certify a second or successive motion under the gatekeeping provisions of § 2255").
Roach has not shown that § 2255 is inadequate or ineffective to test the legality of her detention. Her § 2255 motion was denied in 2001 -- three years before Blakely was decided. Roach has not shown that she attempted to obtain permission from the Eighth Circuit Court of Appeals pursuant to 28 U.S.C. § 2255 to file a second or successive § 2255 motion in the District of South Dakota after Blakely was announced. Requiring that she make such an effort is not requiring an exercise in futility: a successive § 2255 motion may be allowed if the movant alleges "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," 28 U.S.C. § 2255, and that is the thrust of Roach's Blakely argument.
Because a § 2241 remedy is not available to Roach under the savings clause of § 2255, this petition must be treated as filed under § 2255. This Court therefore lacks jurisdiction over it. See 28 U.S.C. § 2255 (§ 2255 motions to be brought in sentencing court); Hernandez, 204 F.3d at 865. The Court must consider whether a transfer to the United States District Court for the District of South Dakota is appropriate. Because that court could not consider this successive petition without prior authorization from the Eighth Circuit, transfer would be futile. Accordingly, this action is DISMISSED.
The Clerk of the Court shall enter judgment, terminate all pending motions and close the file.
Pursuant to the dismissal Order signed today, the petition is DISMISSED. 28 U.S.C. § 2241.
CLAUDIA WILKEN United States ...