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Garcia-Cortez v. Fox

United States District Court, C.D. California

December 12, 2014

EDUARDO GARCIA-CORTEZ, Petitioner,
v.
JACK FOX, Respondent.

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY

PHILIP S. GUTIERREZ, District Judge.

I.

INTRODUCTION AND SUMMARY

On November 12, 2014, petitioner Eduardo Garcia-Cortez ("Petitioner"), a federal prisoner[1] proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C § 2241 ("Petition"). Therein, Petitioner challenges two sentences issued in the United States District Court for the District of Arizona, Phoenix Division. (Pet. at 2.) Generally, however, a federal prisoner who seeks to challenge the legality of his confinement must apply for relief under 28 U.S.C. § 2255 in the sentencing court. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). As such, the Petition must be dismissed without prejudice to Petitioner filing a § 2255 motion in the United States District Court for the District of Arizona, Phoenix Division.[2]

II.

PROCEDURAL HISTORY

On August 29, 2012, Petitioner was convicted in the District of Arizona on one count of re-entry of a removed alien in violation of 8 U.S.C. § 1326(a). ( United States v. Garcia-Cortez, CR 12-0271 NVW (D. Ariz.), Dkt. No. 63.) On November 16, 2012, Petitioner was sentenced to federal prison for 92 months. ( Id., Dkt. No. 68.) That same day, the court further found that Petitioner had violated the terms of supervised release imposed in connection with an earlier conviction, and sentenced Petitioner to a consecutive term of 18 months. ( United States v. Garcia-Cortez, CR 12-50041 NVW (D. Ariz.), Dkt. No. 23.)

Thereafter, Petitioner appealed, and the Ninth Circuit affirmed Petitioner's conviction and sentences. United States v. Garcia-Cortez, 557 F.Appx. 684, 684 (9th Cir. 2014).

On November 26, 2012, Petitioner filed a nominal § 2255 motion seeking to reduce his sentence by a year. ( Garcia-Cortez v. United States, CV 12-2528 NVW (D. Ariz.), Dkt. No. 1.) On February 27, 2013, that action was dismissed without prejudice, after Petitioner failed to file an amended motion on a court-approved form. ( Id., Dkt. No. 6.)

III.

DISCUSSION AND ANALYSIS

As a general matter, "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." Hernandez, 204 F.3d at 864. However, there is an exception - or "escape hatch" - to this rule: a federal prisoner may file a § 2241 challenge to the legality of his sentence when the prisoner's remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). A petition satisfies the "escape hatch" criteria of § 2255(e) "when a petitioner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008).

Here, Petitioner does not raise claims challenging the manner, location, or conditions of the execution of his sentence. ( See Pet. at 3-4.) Nor does Petitioner make a claim of "actual innocence." See Harrison, 519 F.3d at 959. Rather, Petitioner challenges certain aspects of the proceedings in the sentencing court. (Pet. at 3-4.)

Thus, the Petition must be viewed as a § 2255 motion, not a § 2241 petition. See Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012). And a § 2255 motion may not be heard in a district other than the one in which Petitioner was sentenced. 28 U.S.C. § 2255(a).

Accordingly, this Court lacks jurisdiction to consider the Petition. See 28 U.S.C. § 2255(a).

IV.

CERTIFICATE OF APPEALABILITY

For the reasons above, the Court finds that Petitioner has not shown that "jurists of reason would find it debatable whether": (1) "the petition states a valid claim of the denial of a constitutional right"; and (2) "the district court was correct in its procedural ruling." See Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Harrison, 519 F.3d at 958 ("Where a petition purportedly brought under § 2241 is merely a disguised' § 2255 petition, the petitioner cannot appeal from the denial of that petition without a [certificate of appealability].").

V.

ORDER

For the foregoing reasons, IT IS ORDERED THAT the Petition be SUMMARILY DISMISSED for lack of jurisdiction, pursuant to Rule 4 of the Rules Governing Section 2255 Cases in the United States District Courts, without prejudice to Petitioner filing a § 2255 motion in the District of Arizona.[3]

IT IS FURTHER ORDERED THAT a Certificate of Appealability be DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.


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