Movant, a federal prisoner proceeding without counsel, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 23, 2012, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days. Movant has filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. The court views Petitioner's claim through a different lens than the magistrate judge and, therefore, dismisses Petitioner's September 15, 2011 motion to vacate, set aside, or correct his sentence, ECF No. 109, in part, and transfers Petitioner's motion to the Central District of California, in part, for the reasons provided herein.
A. Petitioner's Claims are Properly Brought Under Both 28 U.S.C. § 2241 and 28 U.S.C. § 2255.
In his objections to the findings and recommendations, Petitioner argues that his habeas petition is brought under 28 U.S.C. § 2241, and not 28 U.S.C. § 2255, because he is "not trying to reduce [his] sentence," but instead, his petition "challenges the execution of [his] sentence." Pet'r's Objections, ECF No. 132, at 2 (emphasis included). Petitioner explains that he is "trying to become eligible for the early release incentive for [his] completion of [the Residential Drug Abuse Program ("RDAP")]," that he "do[es] not understand that [his] sentence precludes that incentive," and that he received ineffective assistance of counsel because his "attorney repeatedly told [him] that the inclusion of the weapons [sentencing] enhancement made no difference." Id.
Federal prisoners may appropriately resort to the traditional remedy of federal habeas corpus, pursuant to 28 U.S.C. § 2241, where his remedy under § 2255 is "inadequate or ineffective to test the legality of [the] detention." 28 U.S.C. § 2255; Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). Courts refer to this provision of § 2255 as the "savings clause." Hernandez, 204 F.3d at 864, n.2.
Generally, motions to contest the legality of a sentence must be filed under § 2255, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241. Hernandez, 204 F.3d at 864 (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 Benny v. U.S. Parole Comm'n, 295 F.3d 977, 988 (9th Cir. 2002) ("[a] § 2241 habeas petition challenges the execution of a criminal sentence on grounds that a prisoner 'is in custody in violation of the Constitution or laws or treaties of the United States'") (internal citations omitted). Furthermore, a habeas petition filed pursuant to § 2241 must be heard in the custodial court (here, the Central District of California), while § 2255 motions must be heard in the sentencing court (here, the Eastern District of California). Hernandez, 204 F.3d at 865 (citing, inter alia, Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992)). That is, if Brasier's petition is construed as a petition pursuant to § 2241, the Central District of California has exclusive jurisdiction over that § 2241 petition; whereas, if Brasier's petition is construed as a petition pursuant to § 2255, the Eastern District of California has exclusive jurisdiction over that § 2255 petition.
The "savings clause" provides a very narrow exception. See Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003), cert. denied, 540 U.S. 1051, 124 S.Ct. 807, 157 L.Ed.2d 702 (2003). The burden of showing that the § 2255 remedy is inadequate or ineffective rests with the petitioner. See Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).
Petitioner correctly indicates that a number of district courts outside of the Ninth Circuit have considered a petitioner's challenge to the BOP's determination that he is not eligible for the Residential Drug Abuse Program as a challenge to the execution of a petitioner's sentence, and thus within the ambit of 28 U.S.C. § 2241, as opposed to challenges to the legality of the petitioner's sentence itself, which are more properly brought pursuant to 28 U.S.C. § 2255. See, e.g., Sledge v. Wilner, No. 1:09-cv-00221, 2010 WL 717852, at *2 (D. Colo. Feb. 24, 2010); Raynor v. Shartle, No. 4:08-cv-1688, 2009 WL 1661913, at *2 (N.D. Ohio June 15, 2009); Fuentes v. Samuels, No. 07-2336, 2008 WL 442211, at *5 (D.N.J. Feb. 14, 2008); Cushenberry v. Fed. Medical Ctr., 530 F.Supp.2d 908, 911 (E.D.Ky. 2008); see also 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 41.2(b) (6th ed. 2011).*fn1
On one hand, the magistrate judge reasonably determined that Petitioner's claim challenges the legality of his sentence, and is therefore properly brought under § 2255, because Petitioner initially sought an order seeking the removal of the weapons sentencing enhancement in his pre-sentence report. See Pet'r's Mot., ECF No. 109. Thus, insofar as Brasier is challenging the inclusion of the two-point weapons possession enhancement in his pre-sentencing report, that claim is properly brought under § 2255, and the Eastern District of California has exclusive jurisdiction over that claim.
On the other hand, however, Petitioner's motion also indicates that he seeks removal of his weapons enhancement not for the purpose of contesting his imposed sentence, but in order to be entitled to early release following his completion of the RDAP. See id. at 2-3. Construing petitioner's pro se filing liberally, Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010), this court therefore also interprets Petitioner's habeas motion as a challenge to the BOP's determination that he is ineligible for early release as part of the RDAP, due to the weapons possession enhancement in his pre-sentence report.*fn2 As a motion to essentially challenge the execution of his sentence, and not the imposed sentence itself, this motion is therefore also properly brought under 28 U.S.C. § 2241.
Because a habeas petition filed pursuant to § 2241 must be heard in the custodial court, and Petitioner is currently incarcerated at the Terminal Island Federal Correctional Institution in San Pedro, California, Petitioner's claim to challenge his eligibility for early release as part of the RDAP is transferred to the Central District of California, pursuant to 28 U.S.C. § 1631. See Hernandez, 204 F.3d at 865, n.6 (providing that § 1631 is the proper transfer statute to cure want of jurisdiction).
B. Petitioner's 28 U.S.C. § 2255 Claim Fails to Establish Ineffective Assistance of Counsel
The magistrate judge interpreted Brasier's petition as one challenging the legality of his sentence based on the inclusion of the two-point weapons possession enhancement in his presentence report. See Findings & Recommendations, ECF No. 131, at 1-2. As such, the magistrate judge recommended denying Petitioner's § 2255 motion, finding that: (1) the Petitioner's claim raised a non-constitutional sentencing error; (2) the Petitioner's claim was barred by the statute of limitations; and (3) the Petitioner, in his plea agreement, waived his right to bring a § 2255 action challenging his sentence. Id. at 2-5. The magistrate judge explicitly did not analyze Petitioner's claim as one ...