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Barrio v. Copenhaver

United States District Court, E.D. California

December 1, 2014

ROBERTO BARRIO, Petitioner,
v.
PAUL COPENHAVER, Warden, Respondent

Roberto Barrio, Petitioner, Pro se, ATWATER, CA.

For Paul Copenhaver, Warden, Respondent: Bureau of Prisons Regional Counsel, LEAD ATTORNEY, Federal Bureau of Prisons, Stockton, CA; Litigation Coordinator, LEAD ATTORNEY, USP Atwater, Atwater, CA; Sherry D. Haus, GOVT, LEAD ATTORNEY, U.S. Attorney's Office, Sacramento, CA.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)

Michael J. Seng, UNITED STATES MAGISTRATE JUDGE.

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Both parties have consented to Magistrate Judge jurisdiction. (ECF Nos. 4, 6.)

Petitioner filed the instant habeas petition in this Court on September 5, 2014. He is currently incarcerated at United States Prison Atwater. Petitioner arose from his October 23, 2000 conviction in the Western District of Oklahoma. Petitioner and his wife were " charged with conspiring from 1996 to 2000 with each other, with their two co-defendants, and with 11 other persons who were identified by name, to possess with an intent to distribute in excess of 5 kilograms of cocaine powder, in excess of 50 grams of cocaine base (crack), and in excess of 100 grams of phencyclidine (PCP), in violation of 21 U.S.C. § 841(a)(1). In Counts 3, 6, 7 and 9 Roberto Barrio was charged with causing interstate travel in aid of an unlawful activity in violation of 18 U.S.C. § 1952(a)(3). In Counts 8, 10 and 13 Roberto Barrio was charged with using a telephone to facilitate cocaine distribution in violation of 21 U.S.C. § 843(b)." United States v. Barrio, 41 Fed.Appx. 169, 171 (10th Cir. 2002). A jury found Petitioner guilty of all but count 13 and Petitioner was sentenced to " a mandatory sentence of life imprisonment on Count 1, 60 months imprisonment on each of Counts 3, 6, 7 and 9, and 48 months on each of Counts 8 and 10. Id. All of the sentences imposed were to run concurrently. Id. Presently, Petitioner argues that he is entitled to relief with regard to Counts 1, 3, 6, 7 and 9 in light of the recent Supreme Court decision in Rosemond v. United States, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014). (See generally Pet.)

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), AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (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; rather, 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, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

Further, 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).

II. JURISDICTION

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). In such cases, only the sentencing court has jurisdiction. Id. 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. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (" Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court."); 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. Hernandez, 204 F.3d at 865. Here, Petitioner is challenging the validity and constitutionality of his conviction. Therefore, the appropriate procedure would be to file a motion pursuant to § 2255 and not a habeas petition pursuant to § 2241.

The Ninth Circuit has recognized a narrow exception allowing a federal prisoner authorized to seek relief under § 2255 to seek relief under § 2241 if the remedy by motion under § 2255 is " inadequate or ineffective to test the validity of his detention." Alaimalo v. United States, 636 F.3d 1092, 1096 (9th Cir. 2011), citing Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). " This is called the 'savings clause' or 'escape hatch' of § 2255." Id. Furthermore, § 2255 petitions are rarely found to be inadequate or ineffective. 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.); Tripati, 843 F.2d at 1162-63 (9th Cir. 1988) (a petitioner's fears of bias or unequal treatment do not ...


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