United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
a federal prisoner proceeding pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner paid the filing fee. Petitioner asks the court to
reopen his underlying federal criminal case and appoint
counsel so that petitioner may address the sentencing court
in person. (ECF No. 1 at 7.) As discussed below, the
undersigned finds that the petition should be summarily
dismissed for lack of jurisdiction.
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). In such
cases, only the sentencing court has jurisdiction.
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. Grady v. United States, 929 F.2d
468, 470 (9th Cir. 1991); Tripati, 843 F.2d at 1162.
other hand, 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.
Stephens, 464 F.3d at 897; Hernandez v.
Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000) (per
curiam). “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
exception exists 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 28
U.S.C. § 2255). The Ninth Circuit has recognized that it
is a very narrow exception. Ivy v. Pontesso, 328
F.3d 1057, 1059 (9th Cir. 2003). Usually, the remedy under
§ 2255 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) (a
court’s denial of a prior § 2255 motion is
insufficient to render § 2255 inadequate.);
Tripati, 843 F.2d at 1162-63 (a petitioner’s
fears of bias or unequal treatment do not render a §
2255 petition inadequate).
Ninth Circuit has held that Section 2255 provides an
‘inadequate and ineffective’ remedy (and thus
that the petitioner may proceed under Section 2241) when the
petitioner: (1) makes a claim of actual innocence; and, (2)
has never had an ‘unobstructed procedural shot’
at presenting the claim. Stephens, 464 F.3d at 898.
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 does not challenge the manner, location or
conditions of the execution of his sentence. Rather,
petitioner challenges the legality of his sentence, which he
appears to claim was amended by the district court on July
19, 2013, in United States v. Brim, No. SA CR
93-00098 LHM (C.D. Cal. July 19, 2013). In such order,
the Central District denied petitioner’s fifth request
for relief under 28 U.S.C. § 2255. (ECF No. 1 at 11.) In
ruling on petitioner’s Rule 36 motion, the court found
that the imposition of separate assessments upon each of the
three counts would constitute multiple punishments, and
therefore reduced petitioner’s assessment from $150.00
to a total of $50.00. (ECF No. 1 at 12-13.) Thus,
petitioner’s request to lift the stay, reopen his
underlying criminal case, appoint counsel, and allow
petitioner to allocute anew in light of the July 19, 2013
order, is more appropriately raised in a § 2255 motion.
despite the multiple references to 28 U.S.C. § 2255 in
the instant petition (ECF No. 1 at 4-5), petitioner fails to
mention that he currently has a § 2255 motion pending in
the Central District. United States v. Brim, No.
8:93-cr-0098 LHM (C.D. Cal. July 19, 2013) (ECF No. 526).
Petitioner filed a § 2255 motion on June 5, 2017,
which petitioner asks the Central District to entertain an
amended § 2255 motion to correct sentencing errors
unconstitutionally imposed. No. 8:93-cr-0098 LHM (ECF No. 526
at 1.) The government filed its opposition on April 15, 2019,
and, following leave of court, petitioner filed an amended
reply on June 17, 2019. No. 8:93-cr-0098 LHM (ECF Nos. 547;
554). As of September 18, 2019, no decision had yet been
petitioner does not raise a claim of actual innocence, or
argue that he has never had an ‘unobstructed procedural
shot’ at presenting the claim. Indeed, the record shows
that he is pursuing such relief at this very moment. In
addition, to the extent petitioner is pursuing relief here
due to a perceived delay in ruling on his § 2255 motion
in the Central District, such delay warrants no exception.
The Ninth Circuit has expressly held that “delay in the
resolution of a section 2255 motion does not entitle
[petitioner] to bypass section 2255 in favor of section 2241.
. . .” Pirro, 104 F.3d at 300.
of the above reasons, the instant petition should be
dismissed for lack of jurisdiction.
accordance with the above, IT IS HEREBY ORDERED that the
Clerk of the Court is directed to assign a ...