The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING THE PETITION (DOC. 1) WITH LEAVE TO FILE A ) FIRST AMENDED PETITION NO LATER
THAN THIRTY (30) DAYS AFTER THE ) DATE OF SERVICE OF THIS ORDER
ORDER DIRECTING THE CLERK TO SEND TO PETITIONER A § 2241 HABEAS CORPUS FORM
FILING DEADLINE: THIRTY (30) DAYS
Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is the petition, which was filed on November 8, 2012.
I. Screening the Petition
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).
The Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b). Habeas Rule 4 requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Petitioner alleges that he is an inmate of the Federal Correctional Institution at Taft, California (FCIT), serving a sentence of 96 months imposed in April 2008, in the United States District Court for the Western District of Texas, in case number EP-07-CR-1281-F, for illegal re-entry by an alien in violation of 8 U.S.C. § 1326(a). (Pet., doc. 1, 1-2.) Petitioner alleges that he did not file an appeal from the judgment or sentence, but he filed a petition pursuant to 28 U.S.C. § 2255 based on the allegedly ineffective assistance of counsel. (Id. at 2.) Petitioner claims he is innocent of the charge because his father's paternity was established by a court's adjudication, and thus Petitioner was a United States citizen and could not have been properly convicted of illegally reentering as an alien.
Attached to the petition are two sets of documents. The first set of documents reveal that a February 27, 2008 decision of the United States Citizenship and Immigration Services denied Petitioner's October 30, 2007 application for citizenship pursuant to section 341 of the Immigration and Nationality Act. The decision noted that Petitioner's 2002 application was denied in August 2005 because Petitioner had not established that 1) his father, while Petitioner was under the age of eighteen years, agreed in writing to provide him with financial support until he reached the age of eighteen years, legitimated him under either Mexican law or the laws of the state of New Mexico, or acknowledged paternity over Petitioner in writing under oath; or 2) paternity had been established by the adjudication of a competent court. (Pet. at 7-10.) After notification of the deficiencies, Petitioner had not submitted any evidence to overcome them with his current application. (Id. at 8.)
The second set of documents is from Dagoberto Torres v. Ralph Gamboa, Sr., a/k/a/ Mariano Camilo Gamboa, case number DM-2010-81 in the State of New Mexico, County of Dona Ana, Third Judicial District Court. (Id. at 11-13.) According to a default order establishing paternity dated June 18, 2010, the respondent, Petitioner's natural father, had been served with a petition to establish paternity but had failed to respond. A subsequent order filed on October 19, 2012, entitled "SUPPLEMENTAL ORDER NUNC PRO TUNC," noted that following Petitioner's motion to reopen, the court concluded that the default order establishing paternity was effective nunc pro tunc as of the Petitioner's date of birth of January 22, 1973.
A federal prisoner who wishes to challenge his conviction or sentence on the grounds it was imposed in violation of the Constitution or laws of the United States or was otherwise subject to collateral attack must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. 28 U.S.C. § 2255; Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). In such cases, the motion must be filed in the district where the defendant was sentenced because only the sentencing court has jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Tripati, 843 F.2d at 1163.
Generally, 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. Stephens v. Herrera, 464 F.3d at 897; Tripati, 843 F.2d at 1162. 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. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).
A federal prisoner authorized to seek relief under § 2255 may seek relief under § 2241 only if he can show that the remedy available under § 2255 is "inadequate or ineffective to test the legality of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting § 2255). Although there is little guidance on when § 2255 is an inadequate or ineffective remedy, in the Ninth Circuit it is recognized that the exception is narrow. Id.; Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (dismissal of a successive motion pursuant to § 2255 did not render such motion procedure an ineffective or inadequate remedy so as to authorize a federal prisoner to seek habeas relief); Aronson v. May, 85 S.Ct. 3, 5 (1964) (denial of a prior § 2255 motion is insufficient to render § 2255 inadequate); Tripati, 843 F.2d at 1162-63 (noting that a petitioner's fears of bias or unequal treatment do not render a § 2255 petition inadequate); see, United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 2001) (procedural requirements of § 2255 may not be circumvented by filing a petition for writ of audita querela pursuant to the All Writs Act, 28 U.S.C. § 1651). The burden is on the petitioner to show that the remedy is inadequate or ineffective. ...