The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a federal prisoner proceeding pro se, has filed a petition purportedly pursuant to 28 U.S.C. § 2241. Because he alleged, among other things, that he was entitled to challenge his conviction under 28 U.S.C. § 2241 pursuant to the "savings clause" articulated in 28 U.S.C. § 2255, the court previously ordered the parties to brief whether this court, as the district court presiding in the district of petitioner's current incarceration, had jurisdiction to determine the petition. See Doc. No. 6. Both parties have now responded to the court's order to show cause. See Doc. Nos. 11, 12. For the reasons outlined below, the court recommends that the petition be dismissed. See Rule 4, Rules Governing Section 2255 Proceedings ("2255 Rules").
APPLICATION TO PROCEED IN FORMA PAUPERIS
Petitioner has filed an application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a); 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a).
Petitioner was convicted in 2002 in the Northern District of California of violations of 21 U.S.C. §§ 846 and 841, and was sentenced to a term of 240 months. After appeal, the district court reduced the sentence to 210 months, which the petitioner is currently serving at the Federal Correctional Institution in Herlong, California.
In his current petition, petitioner challenges the legality of the federal statute underlying his conviction, pursuant to the recent Supreme Court decision in Bond v. United States, __ U.S. __, 131 S.Ct. 2355 (2011). Petitioner argues that he was unlawfully prosecuted, convicted and sentenced under federal law for an alleged crime that was "local in nature" and that required adjudication in a state court. See Doc. No. 1 at 3.
Petitioner additionally argues that 21 U.S.C. §§ 846 and 841 were not lawfully enacted because Congress overstepped its authority in enacting the statutes when California already had in place very specific criminal statutes -- in this case, the Health and Safety Code -- which covered narcotic drug crimes, as well as law enforcement officers and judicial officers and courts to adjudicate any charges brought under the state law. See Doc. No. 1 at 7.
Petitioner further raises three challenges to the length of his sentence: (1) that the district court failed to make an individualized assessment of petitioner's conduct -- in this case, the amount of drugs attributable to petitioner versus his co-conspirators; (2) that there are two types of methamphetamine, and that petitioner wrongly received a harsher sentence based upon the more potent drug; and (3) that the district court improperly applied a two-step leadership role enhancement to petitioner's sentence. See Doc. No. 1 at 11-21.
Petitioner reports that he previously filed a motion to vacate his sentence under 28 U.S.C. § 2255 in the Northern District of California, which was denied on February 12, 2009.
The Court Lacks Jurisdiction "[I]n order to determine whether jurisdiction is proper, a court must first determine whether a habeas petition is filed pursuant to § 2241 or § 2225 before proceeding to any other issue." See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). Here, although petitioner denominates the instant petition as one brought pursuant to § 2241, he is clearly attempting to challenge the legality of his conviction. Generally, a federal prisoner contesting the legality of his conviction or sentence must file a motion pursuant to 28 U.S.C. § 2255 in his sentencing court, which in this case would be the U.S. District Court for the Northern District of California. See Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.) ("In general, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention."), cert. denied, 540 U.S. 1051(2003); Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000) (same).
However, § 2255 contains a "savings clause" or "escape hatch" that provides: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it ...