The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a federal prisoner proceeding without counsel, has filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2241. Pursuant to court order, petitioner has now filed an application to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Petitioner "moves to have the conviction in the above case vacated as unlawful and unconstitutional under the Fifth and Sixth Amendments due to actual innocence." (Dkt. No. 1 at 2.) Petitioner raises various claims, including ineffective assistance of counsel and prosecutorial misconduct.
Petitioner pled guilty in the Northern District of California to possession with intent to distribute crack cocaine and possession of a firearm in furtherance of drug trafficking on September 10, 2008. United States v. Moffett, No. CR-08-0200 MMC (N.D. Cal. Jan.3, 2011 Order).*fn1 Petitioner was sentenced to a term of 120 months on November 23, 2008. (Id.)
Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. A federal prisoner who challenges the validity or constitutionality of his conviction must bring a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Only the sentencing court has jurisdiction to hear challenges to federal criminal sentences. Id. at 1163.
On the other hand, a prisoner who challenges the manner, location, or conditions of a criminal sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See e.g., Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998) (because Capaldi alleged his sentence violated the Constitution, his relief should be sought through a motion to vacate judgment pursuant to 28 U.S.C. § 2255); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991) ("Under § 2255, prisoners can move the sentencing court to vacate, set aside, or correct the initial sentence.").
Nevertheless, in rare cases, 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 v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). However, this is a very narrow exception. Iv v. Pontesso, 328 F.3d 1057 (9th Cir. 2003) (a petitioner must show actual innocence and that he never had the opportunity to raise it by motion to demonstrate that § 2255 is inadequate or ineffective); Holland v. Pontesso, 234 F.3d 1277 (9th Cir. 2000) (§ 2255 not inadequate or ineffective because petitioner misses statute of limitations); Tripati, 843 F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition in adequate); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court's denial of a prior § 2255 motion is insufficient to render § 2255 inadequate); Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) (same). The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).
In the instant motion, petitioner is challenging the validity of his conviction, not the execution of his sentence. Petitioner claims his conviction is unconstitutional. Petitioner also includes the notation "2255" behind his reference to 28 U.S.C. § 2241. (Dkt. No. 1 at 2.) Moreover, petitioner provides no facts or circumstances establishing that a motion brought under 28 § 2255, in this context, is either inadequate or ineffective.
Court records demonstrate that petitioner filed a 28 U.S.C. § 2255 motion in the district of his conviction. United States v. Moffett, 08-cr-0200 MMC (N. D. Cal.) (§ 2255 motion denied on January 3, 2011, Dkt. No. 53.) Petitioner raised the same claim in the § 2255 motion as he did in the instant petition. (Id.) The mere denial of petitioner's § 2255 motion is insufficient to render the § 2255 inadequate. Aaronson, 85 S. Ct. at 5; Lorentsen, 223 F.3d at 953. Moreover, because petitioner raised the same claim in his § 2255 as he raised here,*fn2 petitioner cannot demonstrate that he never had the opportunity to raise this issue in a § 2255 motion. Ivey, 328 F.3d at 1059.
In light of the above, petitioner's request for relief is more properly brought as a motion to vacate or set aside his conviction, which must be brought in the court where he was convicted, the Northern District of California. Thus, this action should be dismissed.
Accordingly, IT IS HEREBY ORDERED that petitioner's application to proceed in forma pauperis is granted; and
IT IS HEREBY RECOMMENDED that this action be dismissed, without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the ...