Benitez-Torres v. S. Young

          ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [30-DAY OBJECTION DEADLINE]

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         BACKGROUND

         On 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).^[1] 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.

         On 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.

         DISCUSSION

         A. Preliminary Review of Petition

         Rule 4 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.^[2] 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 Rule 4.

         B. Jurisdiction

         A 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).

         In 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 omitted).

         Nevertheless, 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).

         The 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).

         Here, 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 ...