United States District Court, E.D. California
March 11, 2015
DORRELL EMMANUEL KING, Petitioner,
PAUL COPENHAVER, Warden, Respondent.
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT DISMISS THE PETITION FOR HABEAS CORPUS FOR LACK OF JURISDICTION
SANDRA M. SNYDER, Magistrate Judge.
On December 24, 2014, Petitioner, a federal prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is currently incarcerated at the United States Penitentiary in Atwater, California (USP-Atwater), where he is serving a mandatory minimum sentence of 108 months in prison. He contends that an error in his presentence report resulted in an erroneous criminal history score and ultimately, imposition of an inappropriate sentence.
On February 9, 2010, Petitioner pleaded guilty to an indictment charging two counts of bank robbery contrary to 18 U.S.C. § 2113(a). On February 22, 2011, Petitioner filed a timely petition under 28 U.S.C. § 2255(a), contending that his defense counsel provided ineffective assistance by failing to object to the mistaken offense level, failing to object to discussion regarding a prior 87-month prison term, and failing to file a direct appeal. Petitioner was resentenced to 108 months and given the opportunity to pursue a direct appeal. Thereafter, Petitioner discovered that his presentence report included an unsubstantiated 2005 guilty plea in a Kansas City, Missouri municipal court. Plaintiff contends that inclusion of this unsubstantiated conviction led to an unfounded increase of his criminal history score in the second sentencing.
A federal prisoner who seeks to challenge the validity or constitutionality of his federal conviction or sentence must do so by filing a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1161-62 (9th Cir. 1988); Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). In such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. A prisoner may not collaterally attack a federal conviction or sentence using a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, as Petitioner does in this case. Tripati, 843 F.2d at 1162.
A prisoner challenging the manner, location, or conditions of the execution of his sentence may bring a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the district in which he is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). But a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention. Stephens, 464 F.3d at 897. Restrictions on the availability of a § 2255 motion cannot be avoided by filing a petition under 28 U.S.C. § 2241. Id.
Since Petitioner challenges the validity and constitutionality of the sentence imposed by the District of Minnesota rather than the administration of his sentence at USP-Atwater, proper procedure required him to file a motion pursuant to § 2255 in the District of Minnesota rather than a petition pursuant to § 2241 in this Court.
If a federal prisoner can demonstrate that the remedy available under § 2255 is "inadequate or ineffective to test the validity of his detention, " however, he may nonetheless seek relief under § 2241. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting 28 U.S.C. § 2255); Hernandez, 204 F.3d at 864-65. The exception is very narrow. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 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 § 2255 is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964); Tripati, 843 F.2d at 1162-63; Williams v. Heritage, 250 F.2d 390, 390 (9th Cir. 1957); Hildebrandt v. Swope, 229 F.2d 582, 583 (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).
Petitioner has not demonstrated that § 2255 constitutes an inadequate or ineffective remedy for raising his claims. Because § 2241 is not the proper statute for raising Petitioner's claims, the undersigned recommends that the Court dismiss the petition for lack of jurisdiction.
CERTIFICATE OF APPEALABILITY
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2).
If a court denies a petitioner's petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his... part." Miller-El, 537 U.S. at 338.
In the present case, reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Accordingly, the undersigned recommends that the Court decline to issue a certificate of appealability.
CONCLUSION AND RECOMMENDATION
The undersigned recommends that the Court DISMISS the Petition for Writ of Habeas Corpus, enter judgment, and decline to issue a certificate of appealability.
These findings and recommendations are submitted to the Honorable Anthony W. Ishii, United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fifteen (15) days after being served with a copy, the Petitioner may file written objections with the Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.