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Cecilio Cortez Lopez v. Michael L. Benov

March 14, 2012

CECILIO CORTEZ LOPEZ,
PETITIONER,
v.
MICHAEL L. BENOV, RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]

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 petition for writ of habeas corpus on March 5, 2012. Petitioner contends he is "actually innocent" of the sentencing enhancement because under the rule announced in United States v. Bridgeforth, 441 F.3d 864, 872 (9th Cir. 2006) his prior conviction is a misdemeanor under California law.

Petitioner was convicted and sentenced in the United States District Court for the District of Oregon. He is currently serving a mandatory minimum term of twenty years pursuant to 21 U.S.C. § 851, based on a prior California drug conviction.

Petitioner filed a motion to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255 in the United States District Court for the District of Oregon. The motion was denied on December 9, 2004 in case number 01-60021-2-HO of which this Court takes judicial notice.*fn1 In that motion, Petitioner raised alleged his "counsel was constitutionally deficient in failing to (1) advise him whether to accept two plea offers, [fn] (2) argue that his prior conviction was not a felony, and (3) argue that the court enhanced his sentence in violation of his Sixth Amendment right to trial by jury. He further allege[d] the court enhanced his sentence in violation of [his] Sixth Amendment right." ECF. No. 187, at 1, in Case No. 01-60021-2-HO.

On April 13, 2005, the District Court granted a certificate of appealability as to whether Petitioner's counsel was ineffective and whether his due process rights were violated.

On August 29, 2006, the United States Court of Appeals for the Ninth Circuit affirmed the District Court's decision.

On August 30, 2007, Petitioner filed a motion for reconsideration of the Court's order denying his motion to vacate or correct his sentence under 28 U.S.C. § 2255. The motion for reconsideration was denied on July 14, 2008. The District Court specifically held:

Relying on Rules 60(b)(4) and (6) of the Federal Rules of Civil Procedure, defendant requests that the court "reconsider its prior judgment entered on December 9, 2004, denying his [initial] § 2255 motion[,]" Defendant characterizes United States v. Bridgeforth, 441 F.3d 864, 872 (9th Cir. 2006) as intervening authority for the proposition that his prior conviction was a misdemeanor under California law. The government contends, inter alia, that defendant's motion is an uncertified second or successive motion to vacate, set aside or correct sentence.

The motion lacks the certification required by Section 2255(h). Defendant states no ground for relief under Rules 60(b)(4) and (6). The judgment is not void. Bridgeforth is not an intervening opinion. The court issued the opinion months before it submitted defendant's appeal from the order holding that counsel was not deficient for failing to argue that his prior conviction was a misdemeanor. In essence, defendant asks this court to overturn the judgment of the court of appeals that his prior conviction was not a misdemeanor.

ECF. No. 198, at 1-2, in Case Number 01-60021-2-HO.

On October 17, 2011, the Ninth Circuit Court of Appeals denied Petitioner's application for authorization to file a second or successive motion in the district court. ECF. No. 203, in Case Number 01-60021-2-HO.

JURISDICTION

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 (3d Cir. 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. ...


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