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Acosta v. McGrew

United States District Court, C.D. California

March 25, 2014

RAMON ACOSTA, Petitioner,
v.
LINDA T. McGREW, Warden, Respondent.

ORDER SUMMARILY DISMISSING § 2241 HABEAS PETITION

DAVID O. CARTER, District Judge.

The Court will dismiss this 28 U.S.C. § 2241 habeas petition summarily because the petition seeks relief only available, if at all, pursuant to a 28 U.S.C. § 2255 motion in the sentencing court, which is in the Southern District of New York. Petitioner challenges a portion of his sentence based on a 2013 Supreme Court case. That case cannot aid him, as explained below.

I.

BACKGROUND

Petitioner Ramon Acosta is a federal prisoner housed at Adelanto, in this judicial district. After an eleven-day trial in 2009, a federal jury in Manhattan convicted him of the following three crimes:

Count 1: Conspiracy to commit robbery in violation of 18 U.S.C. § 1951;
Count 5: Attempted robbery in violation of 18 U.S.C. §§ 1951 and 1952; and
Count 6: Brandishing a firearm (in committing the crime covered by Count 5) in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

It is the Count 6 conviction that Petitioner now attacks.

Petitioner was sentenced to a total of 294 months in prison - 210 months each for the Counts 1 and 5, to run concurrently, and a consecutive 84 months sentence for Count 6, the brandishing offense. Pet. ¶ 1-6; see docket in United States v. Acosta ( Acosta I ), S.D.N.Y. No. 07 CR 1150. Petitioner appealed, but the Second Circuit affirmed in March of 2010. See United States v. Acosta, 367 Fed.Appx. 259 (2d Cir. 2010) ( Acosta II ). Six months later, Petitioner moved for § 2255 relief, but the trial court denied that motion on December 20, 2010. See docket in Acosta I.

Three years and three months later, Petitioner filed the instant action, labeling it as a § 2241 habeas petition. He asserts that, based on a 2013 Supreme Court decision, Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), he is now "actually innocent" of brandishing under Count 6 and should be resentenced accordingly.

II.

DISCUSSION

28 U.S.C. § 2255 generally provides the sole procedural mechanism by which a federal prisoner may test the legality of his detention. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). That section bars courts from entertaining most habeas petitions where "it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has ...


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