The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER: (1) CONSTRUING PETITION FOR MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255; AND (2) INFORMING PETITIONER OF WRIT OF HABEAS CORPUS AS
On April 11, 2011, Petitioner, a federal prisoner currently incarcerated at the Federal Prison Camp in Atwater, California, proceeding pro se, filed a Petition for a Writ of Habeas Corpus in this Court pursuant to 28 U.S.C. § 2241. Petitioner alleges that this Court was without jurisdiction to enter judgment against him in Criminal Case No. 08cr1092-JAH, because the criminal statute under which he was convicted is void as unconstitutional.
Although the current action was filed as a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, the Court will construe it as a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. A challenge to the legality of detention by a federal prisoner must be presented in a Motion filed pursuant to 28 U.S.C. § 2255, whereas challenges to the manner, location or conditions of the execution of a sentence must be brought pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). Pursuant to Castro v. United States, 540 U.S. 375, 377 (2003) the Court is required to give Petitioner the following options prior to ruling on his § 2255 Motion and to inform Petitioner of the consequences of choosing those options.
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), the opportunity to file successive motions under § 2255 is strictly limited. The AEDPA amended 28 U.S.C. § 2255 by providing for a one-year limitation period for prisoners to file motions under § 2255. The section states, in pertinent part:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, ...