United States District Court, C.D. California
BRIAN K. TOMLINSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER SUMMARILY DISMISSING PETITION FOR LACK OF JURISDICTION AND DENYING A CERTIFICATE OF APPEALABILITY
DOLLY M. GEE, District Judge.
On January 7, 2015, Brian K. Tomlinson ("Petitioner"), a prisoner in federal custody proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("Petition"). (Docket No. 1.)
On August 12, 2010, in the case United States v. Tomlinson, 3:06-cr-02222-L (S.D. Cal.), Petitioner pled guilty to various federal criminal charges. (United States v. Tomlinson, 3:06-cr-02222-L (S.D. Cal.), Docket No. 98.) Thereafter, Petitioner was sentenced to a total term of 78 months in the custody of the Bureau of Prisons. (United States v. Tomlinson, 3:06-cr-02222-L (S.D. Cal.), Docket No. 115.) Petitioner is presently incarcerated at the Los Angeles Metropolitan Detention Center pursuant to the judgment of conviction. (Petition at 1.)
I. THE COURT LACKS JURISDICTION OVER PETITIONER'S CLAIMS CHALLENGING HIS CRIMINAL CONVICTION AND/OR SENTENCE
Pursuant to Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts, a district court may summarily dismiss a habeas corpus petition, before the respondent files an answer, "[i]f it plainly appears from the face of the petition... that the petitioner is not entitled to relief." The notes to Rule 4 state: "a dismissal may be called for on procedural grounds, which may avoid burdening the respondent with the necessity of filing an answer on the substantive merits of the petition.'" See Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989). Because Petitioner has stated no viable basis for habeas corpus relief over which the Court has jurisdiction, the Petition must be dismissed without prejudice.
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. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). The motion must be filed in the district where the defendant was sentenced because only the sentencing court has jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Tripati, 843 F.2d at 1163.
Generally, 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. Stephens, 464 F.3d at 897; Tripati, 843 F.2d at 1162. Rather, a § 2241 habeas petition is the means by which a prisoner challenges the manner, location, or conditions of that sentence's execution. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).
A federal prisoner authorized to seek relief under § 2255 may seek relief under § 2241 only if he can show the remedy available under § 2255 to be "inadequate or ineffective to test the legality of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting § 2255). This exception is very narrow. Id .; see also Aronson v. May, 85 S.Ct. 3, 5 (1964) (denial of a prior § 2255 motion is insufficient to render § 2255 inadequate); United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001) (procedural requirements of § 2255 may not be circumvented by filing a petition for writ of audita querela pursuant to the All Writs Act, 28 U.S.C. § 1651); Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) (§ 2255 not inadequate or ineffective merely because court of appeals refuses to certify second or successive motion to vacate); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (dismissal of a successive motion pursuant to § 2255 did not render such motion procedure an ineffective or inadequate remedy so as to authorize a federal prisoner to seek habeas relief); Tripati, 843 F.2d at 1162-63 (petitioner's fears of bias or unequal treatment do not render a § 2255 petition inadequate). A prisoner challenging the validity of his conviction or sentence may invoke this exception in § 2255 and bring a petition pursuant to § 2241 only if he: "(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot' at presenting that claim." Stephens, 464 F.3d at 898 (citations omitted); see also Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003).
The burden is on the petitioner to show that the § 2255 remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). If a petitioner proceeding pursuant to § 2241 fails to meet this burden, the § 2241 petition will be dismissed for lack of jurisdiction. Ivy, 328 F.3d at 1061.
In the Petition, Petitioner is challenging the validity and constitutionality of his conviction and/or sentence rather than the administration of his sentence. (See Petition at 1 (challenging Petitioner's "conviction and sentenc[e]" based on inter alia "prosecutorial misconduct and withholding exculpatory evidence"); see also id. at 2, 4.) There is nothing to indicate that Petitioner's remedy under § 2255 is inadequate or ineffective. Accordingly, the appropriate procedure would be to file a motion pursuant to § 2255 and not a habeas petition pursuant to § 2241. The Petition should be dismissed for lack of jurisdiction to the extent Petitioner is challenging his underlying criminal conviction and/or sentence.
III. THE COURT DECLINES TO CONSTRUE THE PETITION AS A SECTION 1983 COMPLAINT TO THE EXTENT PETITIONER CHALLENGES HIS CONDITIONS OF CONFINEMENT
The petition should also be dismissed to the extent that Petitioner is challenging the conditions of his confinement (see, e.g., Petition at 3), and not the ...