Soto v. Gilkey

Full title: MARCO RENE ALMEIDA SOTO, Petitioner, v. CHARLES R. GILKEY, WARDEN…

Court: United States District Court, E.D. California

Date published: Jul 17, 2006

CV F 04-6281 AWI WMW HC (E.D. Cal. Jul. 17, 2006)

Opinion

CV F 04-6281 AWI WMW HC.

July 17, 2006

FINDINGS AND RECOMMENDATIONS RE DENIAL OF PETITION

WILLIAM WUNDERLICH, Magistrate Judge

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

A federal prisoner who wishes to challenge the validity or constitutionality of his 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 (9^th Cir. 1988); Thompson v. Smith, 719 F.2d 938, 940 (8^th Cir. 1983); In re Dorsainvil, 119 F.3d 245, 249 (3^rd 1997); Broussard v. Lippman, 643 F.2d 1131, 1134 (5^th Cir. 1981). In such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. 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 (9^th Cir. 1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 F.2d 840, 842 (5^th Cir. 1980).

In contrast, a federal 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.Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6^th Cir. 1998);United States v. Tubwell, 37 F.3d 175, 177 (5^th Cir. 1994);Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n. 5 (2^nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6^th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3^rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8^th Cir. 1987); Brown v. United States, 610 F.2d 672, 677 (9^th Cir. 1990).

A federal prisoner authorized to seek relief under § 2255 may seek relief under § 2241 if he can show that the remedy available under § 2255 is "inadequate or ineffective to test the validity of his detention." Hernandez v. Campbell, 204 F.3d 861, 864-5 (9^th Cir. 2000); United States v. Pirro, 104 F.3d 297, 299 (9^th Cir. 1997) (quoting § 2255). The Ninth Circuit has recognized that it is a very narrow exception. Id;Ivy v. Pontesso, 328 F.3d 1057 (9^th Cir. 2003) (a petitioner must show actual innocence and that he never had the opportunity to raise it by motion to demonstrate that § 2255 is inadequate or ineffective); Moore v. Reno, 185 F.3d 1054, 1055 (9^th Cir. 1999) (per curium) (holding that the AEDPA's filing limitations on § 2255 Motions does not render § 2255 inadequate or ineffective); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court's denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Lorentsen v. Hood, 223 F.3d 950, 953 (9^th Cir. 2000) (same); Tripati, 843 F.2d at 1162-63 (9^th Cir. 1988) (a petitioner's fears bias or unequal treatment do not render a § 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9^th Cir. 1957); Hildebrandt v. Swope, 229 F.2d 582 (9^th Cir. 1956); see, United States v. Valdez-Pacheco, 237 F.3d 1077 (9^th Cir. 2001) (procedural requirements of § 2255 may not be circumvented by invoking the All Writs Act, 28 U.S.C. § 1651). The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9^th Cir. 1963).

In this case, Petitioner requests that the court grant him a two-point downward departure in his sentence, on the ground that the disparate sentences between alien and American inmates that result from immigration detainers lodged against the alien inmates is a violation of the right to equal protection. Specifically, Petitioner claims that as an illegal alien, he is ineligible for various Bureau of Prison programs that would make his sentence easier to serve and allow him to be released into the community earlier.

Because Petitioner seeks to challenge the constitutionality of his sentence, he is authorized to do so only under Section 2255. He has, however, filed this petition pursuant to Section 2241. As explained above, he can proceed under Section 2241 only if he can show that the remedy available under § 2255 is "inadequate or ineffective to test the validity of his detention." Hernandez v. Campbell, 204 F.3d at 864-5. Petitioner expressly states in his petition that he is filing under Section 2241 because the one-year statute of limitations for Section 2255 has expired.

The fact that a defendant has missed the Section 2255 filing deadline does not make Section 2255 inadequate or ineffective.See Moore v. Reno, 185 F.3d 1054, 1055 (9^th Cir. 1999) (holding that the dismissal of a subsequent § 2255 motion pursuant to28 U.S.C. § 2244(b) does not render federal habeas relief an ineffective or inadequate remedy). Furthermore, however, it is unnecessary for this court to determine whether Section 2255 is inadequate or ineffective to test the validity of Petitioner's detention, because even if Petitioner can properly proceed pursuant to Section 2241, he cannot prevail on the merits of his petition.

In McLean v. Crabtree, 173 F.3d 1176, 1183-84, 1185-86 (9^th Cir. 1999), cert. denied, 120 S.Ct. 814 (2000), the Ninth Circuit unequivocally held that the denial of benefits such as those sought by Petitioner to deportable aliens pursuant to immigration detainers does not violate the Constitution as this exclusion is "rationally related to the BOP's legitimate interest in preventing prisoners from fleeing detainers while participating in community treatment programs." McLean v. Crabtree, 173 F.3d 1176, 1186 (9^th Cir. 1999) (holding that the Bureau of Prisons did not violate the defendants' statutory and constitutional rights when it denied their requests for an 18 U.S.C. § 3621(e)(2)(B) sentence reduction on the basis of an Immigration and Naturalization Service detainer lodged against them). Accordingly, Petitioner's claim of an illegal sentence based on disparate treatment fails, as does his related ineffective assistance of counsel claim.

Based on the foregoing, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be DENIED and that judgment be entered for Respondent.

These Findings and Recommendation are submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636(b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9^th Cir. 1991).

IT IS SO ORDERED.