United States District Court, E.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
GARY S. AUSTIN, Magistrate Judge.
Petitioner is a federal prisoner, represented by counsel, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He has consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c).
Petitioner is presently incarcerated at the United States Penitentiary Atwater, in Atwater, California. Petitioner filed the instant petition on January 22, 2015, and he challenges his conviction in the Eastern District of Pennsylvania for conspiracy to possess with intent to distribute in excess of 100 grams of heroin and in excess of 500 grams of cocaine in violation of 21 U.S.C. § 846; attempting to possess with intent to distribute in excess of 100 grams, approximately 390 grams, of heroin in violation of 21 U.S.C § 841(a)(1); using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); robbery under the Hobbs Act in violation of 18 U.S.C. § 1951(a); using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); and being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). See United States v. Hoffman, Case No. 01-cr-00169-2 (E.D.Pa.).
Following Petitioner's conviction and sentence, he appealed to the Third Circuit Court of Appeals. On September 13, 2005, the Third Circuit affirmed the conviction, but vacated the sentence and remanded for resentencing because United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), had been decided in the interim. See United States v. Hoffman , 148 Fed.Appx. 122 (3rd Cir. 2005). Petitioner was resentenced by the Eastern District of Pennsylvania on December 11, 2006. He then appealed to the Third Circuit Court of Appeals, and his resentencing was affirmed. See United States v. Hoffman , 271 Fed.Appx. 227 (3rd Cir. 2008). Petitioner then filed a motion to vacate, set aside or correct the sentence with respect to this conviction pursuant to 28 U.S.C. § 2255 in the Eastern District of Pennsylvania, which was denied on October 30, 2009. See United States v. Hoffman , 2009 WL 3540770 (E.D.Pa. Oct. 30, 2009). On October 14, 2011, Petitioner's motion for a new trial was denied by the Eastern District of Pennsylvania. See United States v. Hoffman, 2011 WL 4901366 (E.D.Pa. Oct. 14, 2011).
Petitioner has filed the instant petition for writ of habeas corpus under 28 U.S.C. 2241, claiming that his sentence is contrary to the United States Supreme Court's recent decision in Alleyne v. United States, ___ U.S. ___ , 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Petitioner also claims that his attorney did not tell him about a plea offer, in violation of another recent Supreme Court decision, Missouri v. Frye, ___ U.S. ___ , 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).
A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell , 204 F.3d 861, 865 (9th Cir. 2000). A federal prisoner who wishes to challenge the validity or constitutionality of his federal 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); see also Stephens v. Herrera , 464 F.3d 895, 897 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007); Thompson v. Smith , 719 F.2d 938, 940 (8th Cir. 1983)=; In re Dorsainvil , 119 F.3d 245, 249 (3rd Cir. 1997); Broussard v. Lippman , 643 F.2d 1131, 1134 (5th Cir. 1981). In such cases, only the sentencing court has jurisdiction. Tripati , 843 F.2d at 1163. In general, 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. Grady v. United States , 929 F.2d 468, 470 (9th Cir.1991); Tripati , 843 F.2d at 1162; see also United States v. Flores , 616 F.2d 840, 842 (5th Cir.1980). "The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241." Stephens , 464 F.3d at 897 (citations omitted). Therefore, the proper vehicle for challenging a conviction is a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255.
In contrast, a 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 in the district where the petitioner is in custody. See Stephens , 464 F.3d at 897; Hernandez v. Campbell , 204 F.3d 861, 864-65 (9th Cir.2000) (per curiam); Brown v. United States , 610 F.2d 672, 677 (9th Cir. 1990); Capaldi v. Pontesso , 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell , 37 F.3d 175, 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons , 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili , 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane , 921 F.2d 476, 478-79 (3rd Cir. 1991); United States v. Hutchings , 835 F.2d 185, 186-87 (8th Cir. 1987).
Nevertheless, a "savings clause" exists in § 2255(e) by which a federal prisoner may seek relief under § 2241 if he can demonstrate the remedy available under § 2255 to be "inadequate or ineffective to test the validity of his detention." United States v. Pirro , 104 F.3d 297, 299 (9th Cir. 1997) (quoting § 2255); see Hernandez , 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a very narrow exception. See Ivy v. Pontesso , 328 F.3d 1057, 59 (9th Cir.) (as amended), cert. denied, 540 U.S. 1051 (2003). The remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or because a remedy under that section is procedurally barred. See Aronson v. May , 85 S.Ct. 3, 5 (1964) (finding that a prior § 2255 motion is insufficient to render § 2255 inadequate); Tripati , 843 F.2d at 1162-63 (holding that a petitioner's fears of bias or unequal treatment do not render a § 2255 petition inadequate); Williams v. Heritage , 250 F.2d 390 (9th Cir. 1957); Hildebrandt v. Swope , 229 F.2d 582 (9th Cir. 1956). The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States , 315 F.2d 76, 83 (9th Cir. 1963).
The Ninth Circuit has acknowledged that petitioners may proceed under Section 2241 pursuant to the "savings clause, " when the petitioner claims to be: "(1) factually innocent of the crime for which he has been convicted; and, (2) has never had an unobstructed procedural shot' at presenting this claim." Ivy , 328 F.3d at 1059-60 (citing Lorentsen v. Hood , 223 F.3d 950, 954 (9th Cir.2000)); see also Stephens , 464 F.3d at 898. In explaining that standard, the Ninth Circuit stated:
In other words, it is not enough that the petitioner is presently barred from raising his claim of innocence by motion under § 2255. He must never have ...