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Dushon Foster v. Warden Hector Rios

August 5, 2012

DUSHON FOSTER,
PETITIONER,
v.
WARDEN HECTOR RIOS, JR., RESPONDENT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS ORDER REQUIRING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS

Petitioner is a federal prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The instant petition was filed on July 6, 2012, challenging the Bureau of Prisons‟ ("BOP") authority to detain Petitioner and also challenging the sentence as excessive under federal law. (Doc. 1).

The petition indicates that on March 13, 2003, Petitioner was convicted in the United States District Court for the Southern District of New York, of the following crimes: (1) conspiracy to assault with a dangerous weapon, 18 U.S.C. § 1959(a)(6); (2) conspiracy to assault with a dangerous weapon, 18 U.S.C. § 1959(a)(3); and (3) using a firearm during and in relation to the aforementioned crimes, 18 U.S.C. § 924(c)(1). (Doc. 1, p. 3). (Id.). Petitioner was sentenced to concurrent terms of 8 years on the first two charges and to a ten-year term on the third, consecutive to the first two, for a total of eighteen years. (Id.). The United States Court of Appeals, Second Circuit, affirmed the convictions, and remanded the case to the district court for further proceedings, but the latter declined to alter Petitioner‟s sentence. (Id.). Petitioner then filed a motion pursuant to 28 U.S.C. § 2255, which was 2 denied in the sentencing court on July 14, 2008. On June 15, 2009, the Second Circuit declined to 3 issue a certificate of appealability. (Id.). 4

Petitioner now brings this habeas petition, purporting to challenge the execution of his 5 sentence, contending that the Bureau of Prisons ("BOP") lacks statutory authority to detain an 6 individual, such as Petitioner, who has been sentenced pursuant to subchapter A of Chapter 227 (18 7 U.S.C. § 3581). Petitioner argues that only individuals sentenced under subchapter D may be 8 detained. Petitioner also contends that his sentence exceeds that statutory maximum term authorized 9 by law.

Because the Court has determined that Petitioner‟s claim challenges his original sentence, and therefore should have been brought in the trial court as a motion pursuant to 28 U.S.C. § 2255, 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 2(9th Cir. 1990). 3

Petitioner‟s allegation that his sentence exceeds that statutory maximum authorized by law is a 4 clear challenge to his sentence, and must, therefore, be brought in the sentencing court under § 2255. 5

Similarly, although couched as a challenge to the BOP‟s authority to maintain custody of Petitioner, 6 his claim that he cannot be imprisoned based upon a sentence under subchapter A of Chapter 227, is 7 likewise a challenge to Petitioner‟s sentence because, essentially, he is contending that the sentence 8 imposed was defective under the governing statute to result in incarceration by the BOP. It is, thus, in 9 the Court‟s view, a challenge to Petitioner‟s sentence. However, the proper vehicle for challenging such mistakes is a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, not a habeas corpus petition.

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 v. Campbell, 204 F.3d 861, 864-5 (9th Cir.2000); 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; Ivy 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); 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); Tripati, 843 F.2d at 1162-63 (9th Cir.1988) (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 (9th Cir.1956); see United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 2001) (procedural requirements of § 2255 may not be circumvented by invoking the All Writs Act, 28 U.S.C. § 1651). 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 Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003), the Ninth Circuit held that the remedy under 2 a § 2255 motion would be "inadequate or ineffective" if a petitioner is actually innocent, but 3 procedurally barred from filing a second or successive motion under § 2255. Ivy, 328 F.3d at 1060-4 1061. That is, relief pursuant to § 2241 is available when the petitioner‟s claim satisfies the following 5 two-pronged test: "(1) [the petitioner is] factually innocent of the crime for which he has been 6 convicted and, (2) [the petitioner] has never had an "unobstructed procedural shot‟ at presenting this 7 claim." Id. at 1060. 8

"In determining whether a petitioner had an unobstructed procedural shot to pursue his claim, 9 we ask whether petitioner‟s claim "did not become available‟ until after a federal court decision." Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008), cert. denied __ U.S. __, 129 S.Ct. 254 (2008). "In other words, we consider: (1) whether the legal basis for petitioner‟s claim "did not arise until after he had exhausted his direct appeal and first § 2255 motion;‟ and (2) whether the law changed "in any way relevant‟ to petitioner‟s claim after that first § 2255 motion." Id., citing Ivy, 328 F.3d at 1060-1061.

Here, Ivy is dispositive of Petitioner‟s claims. In that case, petitioner, who was convicted in 1993 in Missouri district court of engaging in a continuing criminal enterprise, contended in a habeas corpus petition filed pursuant to § 2241 in the District of Arizona, where he was confined, that he was actually innocent because the indictment did not charge him with the requisite three offenses to sustain a conviction for a continuing criminal enterprise. Ivy, 328 F.3d at 1058. After an unsuccessful appeal, Ivy filed motions pursuant to § 2255 in 1995, 1997, and 1999. Id. The original motion was denied on its merits, while the second and third motions were denied as second and successive motions. Id. In 2000, Ivy filed his ...


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