(HC) Campos v. DeRosa, No. 1:2007cv01537 - Document 5 (E.D. Cal. 2007)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the petition for writ of habeas corpus be DISMISSED signed by Judge Gary S. Austin on 11/01/2007. Motion referred to Judge Wanger. Objections to F&R due by 12/5/2007. (Flores, E)
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(HC) Campos v. DeRosa Doc. 5 Case 1:07-cv-01537-OWW-GSA Document 5 Filed 11/01/2007 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 AUGUSTINE RAMOS CAMPOS, 11 Petitioner, 12 v. 13 14 CHARLES DEROSA, 15 Respondent. ) ) ) ) ) ) ) ) ) ) ) 1:07-CV-01537 OWW GSA HC FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 16 17 18 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 19 Petitioner is challenging his 1998 conviction in the United States District Court for the 20 Eastern District of California, Sacramento Division, of conspiracy to possess with intent to distribute 21 a controlled substance, and possession with intent to distribute a controlled substance. Petitioner is 22 in the custody of the Bureau of Prisons at the California City Correctional Center located in 23 California City, California. 24 25 On October 22, 2007, the instant petition for writ of habeas corpus was received in this Court following transfer from the Central District of California. 26 DISCUSSION 27 28 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. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com Case 1:07-cv-01537-OWW-GSA Document 5 Filed 11/01/2007 Page 2 of 3 1 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); Thompson v. Smith, 719 2 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997); Broussard v. Lippman, 3 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing court has jurisdiction. 4 Tripati, 843 F.2d at 1163. 5 way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States, 6 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 7 F.2d 840, 842 (5th Cir.1980). A prisoner may not collaterally attack a federal conviction or sentence by 8 In contrast, a federal prisoner challenging the manner, location, or conditions of that 9 sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. 10 Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 11 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United 12 States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3rd 13 Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v. United 14 States, 610 F.2d 672, 677 (9th Cir. 1990). 15 A federal prisoner authorized to seek relief under § 2255 may seek relief under § 2241 if he 16 can show that the remedy available under § 2255 is "inadequate or ineffective to test the validity of 17 his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting § 2255). Although 18 there is little guidance from any court on when § 2255 is an inadequate or ineffective remedy, the 19 Ninth Circuit has recognized that it is a very narrow exception. Id; Holland v. Pontesso, 234 F.3d 20 1277 (9th Cir. 2000) (Section 2255 not inadequate or ineffective because Petitioner misses statute of 21 limitations); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (Dismissal of a successive motion 22 attacking sentence did not render such motion procedure an ineffective or inadequate remedy, so as 23 to authorize federal prisoner to seek habeas relief); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s 24 denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 F.2d at 25 1162-63 (9th Cir.1988) (a petitioner's fears bias or unequal treatment do not render a § 2255 petition 26 inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 27 (9th Cir.1956); see, United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 2001) (procedural 28 requirements of § 2255 may not be circumvented by invoking the All Writs Act, 28 U.S.C. § 1651). U .S. D istrict C ourt E. D . C alifornia cd 2 Case 1:07-cv-01537-OWW-GSA Document 5 Filed 11/01/2007 Page 3 of 3 1 The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. 2 United States, 315 F.2d 76, 83 (9th Cir. 1963). 3 In this case, Petitioner challenges the underlying conviction and sentence. Because he is 4 alleging errors in his conviction and sentence, and not errors in the administration of his sentence, 5 the Court finds that Petitioner is not entitled to relief under § 2241, and his petition should be 6 dismissed. In addition, Petitioner makes no claim that § 2255 is inadequate or ineffective. Should 7 the Petitioner wish to pursue his claims in federal court, he must do so by way of a motion to vacate 8 or set aside pursuant to 28 U.S.C. § 2255.1 This petition should be dismissed. 9 RECOMMENDATION 10 Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be 11 DISMISSED because the petition does not allege grounds that would entitle Petitioner to relief under 12 28 U.S.C. § 2241. 13 These Findings and Recommendations are submitted to the Honorable Oliver W. Wanger, 14 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 15 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of 16 California. Within thirty (30) days after being served with a copy, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Replies to the objections shall 19 be served and filed within ten (10) court days (plus three days if served by mail) after service of the 20 objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 21 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive 22 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 IT IS SO ORDERED. Dated: 60kij8 November 1, 2007 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28 1 A petition for writ of habeas corpus pursuant to § 2255 must be filed in the court where petitioner was originally sentenced. In this case, Petitioner challenges convictions and sentences adjudicated in the Sacramento Division of the U.S. District Court for the Eastern District of California. U .S. D istrict C ourt E. D . C alifornia cd 3
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