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Wagoner v. Riores

June 15, 2009

JIMMY WAGONER, PETITIONER,
v.
RIORES, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

(Doc. 1)

ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

Petitioner filed the instant federal petition on February 20, 2009, in the United States District Court for the Central District of California. (Doc. 1). On April 9, 2009, Respondent filed a motion to transfer the case to the United States District Court for the District of Minnesota, the sentencing court, because Respondent contended that the instant habeas petition should have been filed as a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 10). On April 15, 2009, the United States Magistrate Judge in the Central District ordered the case transferred to this Court, apparently because Petitioner was, at the time of filing, confined within this district at the United States Prison-Atwater, in Atwater, California. (Doc. 11).*fn1

In the petition, Petitioner challenges his 1989 conviction and subsequent 360 month sentence on drug charges in the United States District Court for the District of Minnesota. (Doc. 1, p. 2). Petitioner further alleges that on October 14, 1997, and again on April 9, 1999, the Minnesota district court denied Petitioner's motions to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255 was denied. (Doc. 1, pp. 8-9). In the former motion, Petitioner raised the claim of an illegal search, perjured testimony at trial, and fraudulent and manufactured evidence. (Doc. 1, p. 8). In the latter motion, Petitioner raised ineffective assistance of counsel. (Id. at p. 9). Both motions were denied by the trial court. (Id.).

Petitioner now brings this habeas petition, challenging that 1989 conviction on three grounds: (1) the conspiracy to possess with intent to distribute, listed as count one in the superceding indictment, is "unrelated to the crime for which the records and filed actually indicted petitioner"; (2) use of fraudulent evidence in the obtaining of the conviction; and (3) ineffective assistance of appellate counsel. (Doc. 1, pp. 12-14).

Because the Court has determined that Petitioner's claims should been brought in the trial court as a motion pursuant to 28 U.S.C. § 2255, and because the Court finds that such a procedure is neither inadequate or ineffective, the Court will recommend that the instant petition be dismissed.

DISCUSSION

A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). A federal prisoner who wishes to challenge the validity or constitutionality of his conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); Thompson v. Smith, 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163.

A prisoner may not collaterally attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980).

In contrast, a federal prisoner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).

Petitioner acknowledges that he is attacking his 1989 conviction. However, he maintains that he has already filed two separate motions under § 2255, that both were denied, that the AEDPA's*fn2 one-year statute of limitations forecloses him from bringing a second and successive petition, and therefore that, under the "savings clause" in § 2255, he is entitled to bring this action pursuant to § 2241. The Court disagrees.

As mentioned, an inmate challenging a federal conviction must normally proceed in the trial court with a motion pursuant to § 2255. Nevertheless, a federal prisoner authorized to seek relief under § 2255 may seek relief under § 2241 if he can show that the remedy available under § 2255 is "inadequate or ineffective to test the validity of his detention." Hernandez, 204 F.3d at 864-5; United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting § 2255). The Ninth Circuit has recognized that this is a very narrow exception. Id. In Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003), the Ninth Circuit held that the remedy under a § 2255 motion would be "inadequate or ineffective" if a petitioner is actually innocent, but procedurally barred from filing a second or successive motion under § 2255. Ivy, 328 F.3d at 1060-1061. That is, relief pursuant to § 2241 is available when the petitioner's claim ...


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