United States District Court, S.D. California
ORDER CONSTRUING PETITION FOR WRIT OF HABEAS CORPUS
AS MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28
U.S.C. §2255; AND (2) INFORMING PETITIONER OF
Cathy Ann Bencivengo United States District Judge.
February 6, 2017, Petitioner, a federal prisoner currently
incarcerated at Victorville, F.C.I., Adelanto, California,
proceeding pro se, filed a Petition for a Writ of Habeas
Corpus by a Person in Federal Custody pursuant to 28 U.S.C.
§ 2241 in the District Court for the Southern District
of Texas. [Doc. No. 1.] On February 8, 2016, the petition was
transferred to this Court. Id. On April 1, 2017, the
United States of America filed a response to the Petition.
[Doc. No. 10.]
was originally charged, within the Southern District of
Texas, in underlying criminal case no. 11cr776, for violation
of 8 U.S.C. §1326. [Doc. No. 1-1.] Petitioner pled
guilty and was sentenced to 41-months custody, 3-years'
supervised release, and ordered to pay a $100 special
assessment. [Doc. No. 1-5.] On February 16, 2016, the
District Court for the Southern District of Texas transferred
Petitioner's supervised release jurisdiction to the
Southern District of California. [Doc. No. 1.] The new
criminal case number in this District became 16cr7046-CAB.
The reason for the transfer was likely because Defendant had
been arrested and charged within the Southern District of
California for a new §1326 violation, Case No.
the U.S. Probation Office filed an Expanded Violation
Worksheet in transfer case 16cr7046-CAB on April 6, 2016,
which alleged Petitioner was in violation of his Supervised
Release by returning to the U.S. illegally. [Doc. No. 1-4.]
On January 13, 2017, after pleading guilty to the more recent
§1326 case in 16cr463-CAB and after admitting his
violations alleged in 16cr7046-CAB, this Court sentenced
Petitioner to 12-months' custody in the new case
(16cr463-CAB), and to a term of 8-months' custody
consecutive in the supervised release transfer case
(16cr7046-CAB). Thereafter, on February 6, 2017, Petitioner
filed this petition in the Southern District of Texas, in
Case no. 11cr776. The Southern District of Texas transferred
the petition to this court because, at the time, Petitioner
was incarcerated at the Otay-Mesa Detention Center, which is
located in the Southern District of California. [Doc. No. 4.]
requests that the Court vacate the 8-months' consecutive
sentence this Court recently imposed in the supervised
release matter, 16cr7046-CAB. He argues that, in his first
§1326 conviction, the original court - the Southern
District of Texas in predecessor case no. 11cr776 - imposed
the 41-month sentence and 2-year term of supervised release
in error. Thus, he is asking this Court to vacate its
(presumably error-free sentence) due to an alleged
constitutional error in the sentencing imposed by the
Southern District of Texas.
prisoners have two statutory paths by which they may seek a
writ of habeas corpus. “As a general rule, ”
federal inmates may collaterally attack their conviction only
under 28 U.S.C. § 2255. Alaimalo v. United
States, 645 F.3d 1042, 1046 (9th Cir. 2011); Ivy v.
Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003) (section
2255 provides “the exclusive procedural mechanism by
which a federal prisoner may test the legality of his
a federal prisoner may also seek a writ under 28 U.S.C.
§ 2241. That statute permits a prisoner to
“challenge the manner, location, or conditions of a
sentence's execution” by habeas review.
Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.
2000). A Section 2241 petition must be brought in a federal
court in the district in which the inmate is
confined; a challenge under Section 2255 must be
filed in the court that originally imposed sentence.
statutes overlap in the “exceptional case” in
which a petition “qualifies for the escape hatch of
[Section] 2255, and can legitimately be brought as a
[Section] 2241 petition.” Harrison v. Ollison,
519 F.3d 952, 958 (9th Cir. 2008). The “escape
hatch” provision under Section 2255(e) allows a federal
prisoner to pursue relief under Section 2241 where it appears
that a habeas petition in the sentencing court is
“inadequate or ineffective to test the legality of his
detention.” Id. at 956. To apply the escape
hatch, a district court must first answer the
“threshold jurisdictional question” of
“whether a petition is properly brought under §
2241 or is, instead, a disguised § 2255 motion, before
it can proceed to the merits of the claim.” Marrero
v. Ives, 682 F.3d 1190, 1194 (9th Cir. 2012).
prisoner may qualify for the escape hatch - and bring a
Section 2241 petition in the district in which the prisoner
is incarcerated - where the petitioner “(1) makes a
claim of actual innocence, and (2) has not had an
unobstructed procedural shot at presenting that claim.”
Alaimalo, 645 F.3d at 1047 (quotation omitted).
2013) (prisoner's argument that he was “innocent of
his career offender status for sentencing purposes is not
cognizable as a claim of actual innocence”) (quotation
the current action was filed as a Petition for a Writ of
Habeas Corpus by a Person in State Custody pursuant to 28
U.S.C. § 2241, the Court will construe it as a Motion to
Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C.
§ 2255, as Petitioner is collaterally attacking the
constitutionality of the sentence imposed by the Texas
District Court, and has made no “escape hatch”
claim under Section 2241. Given that this petition will be
construed as a Section 2255 motion, pursuant to Castro v.
United States, -U.S.-, 124 S.Ct. 786 (2003), the Court
is required to give Petitioner the following options prior to
ruling on his Section 2255 Motion and to inform Petitioner of
the consequences of choosing those options.
the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), the opportunity to file successive
motions under Section 2255 is strictly limited. The AEDPA
amended 28 U.S.C. Section 2255 by providing for a one-year
limitation period for prisoners to file motions under Section
2255. The section states, in pertinent part:
(f) A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run ...