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Ramirez v. Fox

United States District Court, C.D. California

December 12, 2014

MARCOS XAVIER RAMIREZ, Petitioner,
v.
JACK FOX, Warden, Respondent.

MEMORANDUM AND ORDER SUMMARILY DISMISSING PETITION

PHILIP S. GUTIERREZ, District Judge.

I.

INTRODUCTION

On December 4, 2014, petitioner Marcos Xavier Ramirez ("Petitioner"), a federal prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. § 2241 ("Petition"). Petitioner challenges his 1998 convictions for conspiracy to manufacture methamphetamine and possession with intent to distribute methamphetamine. Petition ("Pet.") (ECF 1) at 2. Petitioner sustained his convictions in the United States District Court for the District of Oregon ("District of Oregon"). Id.

Although not entirely clear, Petitioner appears to raise six grounds for relief. Petitioner's Supplemental Brief in Support of Petition ("Supplement") (ECF 2). Each of the six grounds are based on arguments related to Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013) in which the Supreme Court overruled its previous decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) and held any fact that increases the mandatory minimum sentence for a crime is an element of the criminal offense that must be submitted to the jury and proven beyond a reasonable doubt.

As Petitioner acknowledges, Petitioner filed a petition pursuant to 28 U.S.C. § 2255 in the District of Oregon challenging the same 1998 convictions ("First Petition"). See Pet. at 4. In the First Petition, Petitioner raised numerous arguments, including an argument that his constitutional rights were violated when the court sentenced him based on facts not proven to a jury beyond a reasonable doubt. Supplement at 44, 64 (Table of Contents from Supplemental Brief and Reply Brief in Support of First Petition). The First Petition was denied in September 2007. See Pet. at 4.

As discussed below, the instant Petition, filed under section 2241, is actually a "second or successive" section 2255 petition. Because Petitioner has not sought and obtained permission from the appropriate Court of Appeals to file a second or successive petition, this Court lacks jurisdiction and the Petition must be dismissed.

II.

DISCUSSION

Challenges to the legality of a federal conviction or sentence generally must be made in a motion to vacate sentence filed under 28 U.S.C. § 2255 in the sentencing court, while challenges to the manner, location, or conditions of a sentence's execution must be filed under 28 U.S.C. § 2241 in the custodial court. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Doganiere v. United States, 914 F.2d 165, 169-70 (9th Cir. 1990), cert. denied, 499 U.S. 940 (1991). Here, Petitioner does not purport to challenge "the manner, location, or conditions" of the execution of his sentence. Rather, Petitioner is contesting the legality of his detention by contending the trial court erred in sentencing him, in violation of the Supreme Court's holding in Alleyne.

As a general rule, "§ 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention." Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). A petitioner is generally limited to one motion under § 2255, and may not bring a "second or successive motion" unless it meets the exacting standards of 28 U.S.C. § 2255(h). United States v. Washington, 653 F.3d 1057, 1059 (9th Cir.2011). Pursuant to section 2255(h):

A second or successive motion must be certified as provided in [28 USC § 2244] by a panel of the appropriate court of appeals to contain -
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously ...

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