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Barrientos-Ramirez v. United States

United States District Court, S.D. California

May 10, 2017

CLAUDIO BARRIENTOS-RAMIREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Warden, Respondent.

          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 OPTIONS

          Hon. Cathy Ann Bencivengo United States District Judge.

         On 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.]

         BACKGROUND

         Petitioner 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. 16cr463-CAB.

         Subsequently, 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.]

         DISCUSSION

         Petitioner 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.

         Federal 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 detention”).

         However, 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[1]; a challenge under Section 2255 must be filed in the court that originally imposed sentence. Id.[2]

         The 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).

         A 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 omitted).

         Although 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.

         Under 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 ...

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