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 (Doc. 1) ORDER REQUIRING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner filed the instant federal petition on November 13, 2012, challenging the sentence imposed in case no. 1:10-cr-00138-LJO by the United States District Court for the Eastern District of California, following Petitioner's March 20, 2011 plea of guilty to one count of being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. (Doc. 1). In his written plea agreement, Petitioner expressly agreed to (1) the truth of all of the facts set forth as a factual basis for the charge; (2) that he would not move for a downward departure or reduction of his sentence beyond the four level departure agreed to by the parties in the plea agreement; and (3) that he waived his right to appeal his sentence or to collaterally attack his sentence pursuant to either 28 U.S.C. § § 2255 or 2241. (Doc. 9, case no. 1:10-cr-00138-LJO). Petitioner, who was represented by counsel throughout those proceedings, was then sentenced to a term of forty-six months. (Doc. 11, case no. 1:10-cr-00138-2 LJO). 3
On August 23, 2012, Petitioner filed a motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255. (Doc. 14, case no. 1:10-cr-00138-LJO). On August 29, 2012, the District Judge 5 denied Petitioner's § 2255 motion, concluding that the motion was untimely and that Petitioner had 6 already waived his right to relief pursuant to § 2255. (Doc. 15, case no. 1:10-cr-00138-LJO). 7 4 Petitioner, in this § 2241 habeas petition, again challenges his sentence, contending that he 8 must proceed via § 2241 because he cannot now file a § 2255 petition, that avenue of relief having 9 already been deemed unavailable by the District Judge. For the reasons set forth below, the Court recommends that the instant habeas petition be dismissed.
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 the execution of the sentence 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 (9th Cir. 1990). The instant petition contains one ground for relief, i.e., a claim of ineffective assistance of 2 counsel for his attorney's failure to address and investigate the bases for Petitioner's sentence "in 3 which prior convictions were used to illegally enhance Petitioner's sentence." (Doc. 1, p. 3). 4
Petitioner contends that the trial court erred by enhancing Petitioner's sentence by sixteen points for a 5 prior conviction that did not fit the criteria for an enhancement under 8 U.S.C. § 1326(b)(2). (Id.). 6
Petitioner argues that the Sixth Amendment requires that any such enhancement be pleaded and 7 proved to a fact-finder beyond a reasonable doubt and that this did not occur in his case. (Id.). 8
Clearly, Petitioner is challenging his sentence. However, the proper vehicle for challenging such a 9 sentencing error is by filing a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, not through a habeas corpus petition.
Nevertheless, an exception exists, often referred to either as the "savings clause" or the "escape hatch," wherein 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).
The remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied or because a remedy under that section is procedurally barred. Aronson v. May, 85 S.Ct. 3, 5, 13 L.Ed. 2d 6 (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); 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 (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). 3
In Ivy v. Pontesso, 328 F.3d 1057, the Ninth Circuit held that the remedy under a § 2255 4 motion would be "inadequate or ineffective" if a petitioner is actually innocent, but procedurally 5 barred from filing a second or successive motion under § 2255. Ivy, 328 F.3d at 1060-1061. That is, 6 relief pursuant to § 2241 is available when the petitioner's claim satisfies the following two-pronged 7 test: "(1) [the petitioner is] factually innocent of the crime for which he has been ...