United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT
JUDGE FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS [30-DAY OBJECTION DEADLINE]
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
is a federal prisoner proceeding pro se and in
forma pauperis with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. He is in the custody of
the Bureau of Prisons (“BOP”) at the United
States Penitentiary in Atwater, California. He filed the
instant federal petition on November 8, 2019, challenging his
sentence. Because Petitioner does not satisfy the savings
clause in 28 U.S.C. § 2255 which would allow him to
challenge his conviction by way of § 2241, the Court
will recommend that the instant petition be DISMISSED.
April 5, 2002, Petitioner was sentenced in the United States
District Court for the Southern District of Texas to an
aggregate prison term of 312 months after having been found
guilty of transporting an undocumented alien (8 U.S.C. §
1324(a)(1)(A)(ii)), illegal re-entry following deportation (8
U.S.C. § 1326(a)), and attempted murder of a U.S. Border
Patrol agent (18 U.S.C. §§ 1113, 1114). United
States v. Benitez-Torres, 2018 WL 6839675, *1 (S.D. Tex.
2018). Petitioner appealed and the Fifth Circuit
Court of Appeal affirmed judgment. Id. In April of
2005, Petitioner filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. Id. The
sentencing court dismissed the motion as time-barred and
meritless. Id. Petitioner appealed to the Fifth
Circuit Court of Appeal, and the appeal was denied.
Id. Petitioner petitioned for writ of certiorari to
the Supreme Court, but the Supreme Court denied certiorari on
October 10, 2007. Id. Petitioner filed a second
§ 2255 motion to vacate his sentence as well as a Rule
60(b) motion for reconsideration on June 6, 2018.
Id. The § 2255 motion was dismissed as an
unauthorized second or successive motion, and the Rule 60(b)
motion was dismissed for failure to state a cognizable claim.
Id. On October 22, 2018, Petitioner filed a third
motion to vacate pursuant to § 2255. Id. The
motion was dismissed as an unauthorized successive motion on
December 31, 2018. Id.
November 8, 2019, Petitioner filed the instant habeas
petition challenging his sentence. He claims he is actually
innocent of his sentence because the sentencing court
erroneously determined he had a prior felony conviction.
Preliminary Review of Petition
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court . . . .”
Rule 4 of the Rules Governing Section 2254
Cases. The Advisory Committee Notes to Rule 8
indicate that the court may dismiss a petition for writ of
habeas corpus, either on its own motion under Rule 4,
pursuant to the respondent's motion to dismiss, or after
an answer to the petition has been filed. Herbst v.
Cook, 260 F.3d 1039 (9th Cir. 2001). The Court will
screen the instant petition pursuant to its authority under
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;
see also United States v. Flores, 616 F.2d 840, 842
(5th Cir. 1980).
contrast, 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
an 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); see
Hernandez, 204 F.3d at 864-65. The Ninth Circuit has
recognized that it is a very narrow exception. 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 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 is challenging the validity and constitutionality
of his sentence as imposed by the United States District
Court for the Southern District of Texas. Therefore, the
appropriate procedure would be to file a motion pursuant to
§ 2255 in the Southern District of Texas, not a habeas
petition pursuant to § 2241 in this Court. Petitioner
acknowledges this fact, but contends that the remedy under
§ 2255 is inadequate and ineffective. Petitioner's
argument is ...