The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER DENYING PETITIONER'S MOTION FOR TIME REDUCTION PURSUANT TO 28 U.S.C. § 2241 AND DISMISSING PETITIONER'S MOTION FOR TIME REDUCTION PURSUANT TO 28 U.S.C. § 2255
On May 30, 2007, petitioner Carlos Enrique Franco filed a motion under 28 U.S.C. § 2255 requesting that the court reduce his 240-month sentence. Franco is prohibited from serving his sentence in a minimum security facility or community corrections center due to his status as a deportable alien. Franco contends that his sentence should be reduced because his current treatment is discriminatory and violates the Due Process and Equal Protection Clauses of the Constitution.
Franco pled guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841 and was sentenced by Judge John Davies on May 13, 1993. Based on an information filed by the government under 21 U.S.C. § 851, Judge Davies imposed a 240-month mandatory minimum sentence. Franco filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 on May 22, 2002. Franco argued that his plea was not knowing and intelligent because he received ineffective assistance of counsel. He further argued that extraordinary circumstances justified tolling the limitations period within which he was required to file the motion. On March 16, 2004, the court issued an order denying Franco's motion. The court found that the motion was barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and that the circumstances presented were not sufficient to warrant equitable tolling.
Franco filed a second motion to vacate, set aside, or correct his sentence under § 2255 on March 23, 2005. He requested that the transcripts of his sentencing and plea hearings be unsealed, and that he be provided with copies of the transcripts pursuant to 28 U.S.C. § 753(f). On July 29, 2005, the court dismissed Franco's motion without prejudice as a second or successive petition that required authorization by the Ninth Circuit. Franco sought permission from the Ninth Circuit to proceed, but on October 24, 2005, the Ninth Circuit denied Franco's request.
Franco filed the instant motion under 28 U.S.C. § 2255 on May 30, 2007. He claims that his due process and Equal Protection rights have been violated because, as a deportable alien, he is not eligible for certain early release and community housing programs. He seeks a reduction in his sentence on this basis. The government has opposed the motion, arguing that it is procedurally barred.
A. Whether Franco's Petition Should Be Analyzed Under Section 2255 or Section 2241
Franco has filed his motion under 28 U.S.C. § 2255. It is more properly classified as a 28 U.S.C. § 2241 petition, however. Petitions under section 2241 and motions under section 2255 differ in the type of issues they address. Motions under section 2255 generally contest the legality of a conviction or sentence, while petitions under section 2241 challenge "the manner, location, or conditions of a sentence's execution." Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (citing Doganiere v. United States, 914 F.2d 165, 169-70 (9th Cir. 1990); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1980)). See also Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001) (stating that section 2241 "generally challenges the execution of a federal prisoner's sentence, including such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions," while section 2255 "is generally the proper vehicle for a federal prisoner's challenge to his conviction and sentence," citing Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997)); Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) ("A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 are distinct mechanisms for seeking post-conviction relief. A section 2241 petition on behalf of a sentenced prisoner attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration. . . . A section 2255 motion, by contrast, 'provides the primary means of collateral attack on a federal sentence,'" quoting Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990)).
Where a pro se petitioner brings a motion under section 2255 that raises issues more properly addressed through a section 2241 petition, the court should construe it as as section 2241 petition. See Tyler v. United States, 929 F.2d 451, 453 & n. 5 (9th Cir. 1991) (noting with approval the fact that the district court construed a § 2255 motion as a § 2241 petition); United States v. Dohrmann, 36 Fed. Appx. 879, 880 (9th Cir. Jan. 31, 2002) (Unpub. Disp.) ("We have often construed petitions labeled as § 2255 motions either as petitions for habeas relief under § 2241 or as petitions for a writ of coram nobis if one of these other avenues is more appropriate"); Tarango v. United States, Nos. CV-F-08-975 OWW, CR-F-06-239 OWW, 2008 WL 3892058, *3 (E.D. Cal. Aug. 21, 2008) (construing a motion filed under § 2255 as a § 2241 petition); United States v. Osuna-Samaniego, Nos. CR-04-167-RHW, CV-07-143-RHW, 2007 WL 3406758, *1 (E.D. Wash. Nov. 13, 2007) (construing an alternate claim in a § 2255 motion, which challenged the execution of the prisoner's sentence, as raised in a § 2241 petition).
Franco alleges violations of his due process and Equal Protection rights and seeks a reduction in his sentence. He contends that he cannot be housed in a minimum security facility or a community corrections center because of his status as a deportable alien, while a United States citizen convicted of identical crimes would be eligible for such housing. Courts have addressed the issue raised by Franco under both sections 2255 and 2241. Compare United States v. Nguyen, No. CRIM. 97-152-05, 2000 WL 1133055, *1 (D. Or. Aug. 10, 2000) (construing a § 2241 petition alleging, inter alia, an equal protection violation due to the deportable alien prisoner's ineligibility for certain programs as a § 2255 motion) with Osuna-Samaniego, 2007 WL 3406758 at *1 n. 1 (construing a deportable alien prisoner's claim, in a § 2255 motion, that his ineligibility for programs violated due process and equal protection as a § 2241 petition).
1. Circuit Court Precedent
In McLean v. Crabtree, 173 F.3d 1176 (9th Cir. 1999), the Ninth Circuit considered a claim similar to the one Franco asserts. Petitioners were deportable aliens with INS detainers who argued that their ineligibility for a sentence reduction on completion of a drug treatment program violated their equal protection and due process rights. Id. at 1184-86. They asserted their claims in a § 2241 petition, and the Court analyzed the claims under that section, without indicating in any way that they would more properly have been raised under § 2255. See id. at 1179.
Green v. Apker, 153 Fed. Appx. 77 (3rd Cir. Oct. 17, 2005) (Unpub. Disp.) is the only circuit court decision the court has located addressing whether claims such as Franco's are properly raised under § 2255 or § 2241. There, a prisoner filed a § 2241 petition, asserting, inter alia, an equal protection claim based on the fact that a Bureau of Immigration and Customs Enforcement detainer prevented him from participating in various rehabilitative and early release programs. Id. at 79-80. The district court dismissed the petition on the ground that the prisoner was required to proceed under § 2255, rather than § 2241. Id. at 78. Although the Third Circuit agreed with the district court as to certain other claims advanced by the petitioner, it disagreed regarding his equal protection claim. The court explained that "[b]ecause this claim challenges the execution of Green's sentence, rather than the validity of it, he properly raised it in a § 2241 petition." Id. at 79-80.
2. District Court Decisions
Those district courts that have considered arguments similar to the one Franco raises have often chosen to address the arguments under both § 2255 and § 2241. In Tarango v. United States, Nos. CV-F-08-975 OWW, CR-F-06-239 OWW, 2008 WL 3892058, *3 (E.D. Cal. Aug. 21, 2008), petitioner was ineligible for housing in a halfway house because he was subject to deportation upon release. He filed a § 2255 motion alleging ineffective assistance of counsel based, among other things, on his attorney's failure to argue for a downward departure because of his deportable alien status. Id. at *1. Because petitioner's motion appeared untimely, the court directed him to file an amended motion "setting forth the grounds upon which he seeks relief and the facts upon which he relies in contending that his motion is timely filed or that he is entitled to equitable tolling." Id. at *2. In response, petitioner did not address timeliness or equitable tolling. Rather, he submitted the affidavit of his attorney, who explained that he was ineligible for housing in a halfway house because of his status as a deportable alien. Id. The court dismissed the action because petitioner had submitted no information demonstrating that the motion was timely under § 2255. ...