UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
September 6, 2005
MARIA M. LARA-NAUSA, PETITIONER,
SHEILA CLARK, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER OF DISMISSAL
Maria M. Lara-Nausa, 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 1999 sentence from the United States District Court for the Southern District of New York in criminal case No. 98-CR-707-06(AGS). LaraNausa 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).
Lara-Nausa alleges that she filed an unsuccessful § 2255 motion in the Southern District of New York alleging the ineffective assistance of trial counsel. The motion was denied on September 14, 2004. Lara-Nausa states that she has not filed a successive § 2225 motion in the district court raising her Blakely claim because "the AEDPA of 1996 forbids the filing of more than one [§]2255 motion." Pet. at 4.
This effort to show that § 2255 is "inadequate or ineffective to test the legality of [Lara-Nausa'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").
Moreover, Lara-Nausa has not shown that she ever attempted to obtain permission from the Second Circuit Court of Appeals pursuant to 28 U.S.C. § 2255 to file a second or successive § 2255 motion in the Southern District of New York 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 Lara-Nausa's Blakely argument.
Because a § 2241 remedy is not available to Lara-Nausa 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 Southern District of New York is appropriate. Because that court could not consider this successive petition without prior authorization from the Second 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.
IT IS SO ORDERED.
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