(HC) Fleurissaint v. Rios, No. 1:2009cv00572 - Document 12 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sheila K. Oberto on 6/25/2010, recommending that Petition be Dismissed 1 . Referred to Judge Wanger; Objections to F&R due by 8/2/2010. (Marrujo, C)
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(HC) Fleurissaint v. Rios Doc. 12 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 WINDZER FLEURISSAINT, 12 Petitioner, 13 v. 14 H. A. RIOS, JR., Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—00572-OWW-SKO-HC FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 (Doc. 1) OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 18 Petitioner is a federal prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2241. 21 I. 22 Petitioner is challenging his 2005 convictions in the United Background 23 States District Court for the Southern District of New York of 24 conspiracy to commit robbery, attempted robbery, conspiracy to 25 distribute and possess marijuana with intent to distribute it, 26 and possession and carrying of a firearm during a crime of 27 violence. 28 Bureau of Prisons (BOP) at the United States Penitentiary at (Pet. 18.) Petitioner was in the custody of the 1 Dockets.Justia.com 1 Atwater, California, at the time he filed the petition. 2 1.) 3 Federal Correctional Institution in Talladega, Alabama. 4 7.) 5 (Pet. Petitioner presently is in the custody of the Talladega (Doc. On March 30, 2009, Petitioner filed the instant petition for 6 writ of habeas corpus pursuant to 28 U.S.C. § 2241. 7 asserts that his sentence was illegal and unconstitutional 8 because it was based on inaccurate findings concerning prior 9 convictions resulting from improper proceedings, and it was Petitioner 10 erroneous with respect to concurrent sentences and assessment 11 fees. (Pet. 15.) 12 II. 13 A federal prisoner who wishes to challenge his conviction or Analysis 14 sentence on the grounds it was imposed in violation of the 15 Constitution or laws of the United States or was otherwise 16 subject to collateral attack must do so by way of a motion to 17 vacate, set aside, or correct the sentence under 28 U.S.C. 18 § 2255. 19 (9th Cir. 2006); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 20 1988). 21 where the defendant was sentenced because only the sentencing 22 court has jurisdiction. 23 (9th Cir. 2000); Tripati, 843 F.2d at 1163. 24 prisoner may not collaterally attack a federal conviction or 25 sentence by way of a petition for a writ of habeas corpus 26 pursuant to 28 U.S.C. § 2241. 27 897 (9th Cir. 2006); 28 28 U.S.C. § 2255; Stephens v. Herrera, 464 F.3d 895, 897 In such cases, the motion must be filed in the district Hernandez v. Campbell, 204 F.3d 861, 864 Generally, a Stephens v. Herrera, 464 F.3d 895, Tripati, 843 F.2d at 1162. In contrast, a federal prisoner challenging the manner, 2 1 location, or conditions of that sentence's execution must bring a 2 petition for writ of habeas corpus under 28 U.S.C. § 2241. 3 v. United States, 610 F.2d 672, 677 (9th Cir. 1990). 4 Brown A federal prisoner authorized to seek relief under § 2255 5 may seek relief under § 2241 only if he can show that the remedy 6 available under § 2255 is "inadequate or ineffective to test the 7 legality of his detention." 8 297, 299 (9th Cir. 1997) (quoting § 2255). 9 little guidance from any court on when § 2255 is an inadequate or United States v. Pirro, 104 F.3d Although there is 10 ineffective remedy, the Ninth Circuit has recognized that the 11 exception is narrow. 12 (9th Cir. 1999) (dismissal of a successive motion pursuant to 13 § 2255 did not render such motion procedure an ineffective or 14 inadequate remedy so as to authorize a federal prisoner to seek 15 habeas relief); Aronson v. May, 85 S.Ct. 3, 5 (1964) (denial of a 16 prior § 2255 motion is insufficient to render § 2255 inadequate); 17 Tripati, 843 F.2d at 1162-63 (9th Cir. 1988) (noting that a 18 petitioner's fears of bias or unequal treatment do not render a 19 § 2255 petition inadequate); see, United States v. Valdez- 20 Pacheco, 237 F.3d 1077 (9th Cir. 2001) (procedural requirements 21 of § 2255 may not be circumvented by filing a petition for writ 22 of audita querela pursuant to the All Writs Act, 28 U.S.C. 23 § 1651). 24 is inadequate or ineffective. 25 F.2d 76, 83 (9th Cir. 1963). 26 to § 2241 fails to meet his burden to demonstrate that the § 2255 27 remedy is inadequate or ineffective, then the § 2241 petition 28 will be dismissed for lack of jurisdiction. Id; Moore v. Reno, 185 F.3d 1054, 1055 The burden is on the petitioner to show that the remedy Redfield v. United States, 315 If a petitioner proceeding pursuant 3 Ivy v. Pontesso, 328 1 2 F.3d 1057, 1061 (9th Cir. 2003). In this case, Petitioner challenges the underlying sentence 3 imposed on him, including the sentencing court’s use of prior 4 convictions and its imposition of assessment fees with respect to 5 concurrent sentences. 6 his sentence, and not errors in the administration of his 7 sentence, the Court concludes that Petitioner is not entitled to 8 relief under § 2241. 9 Because Petitioner is alleging errors in In addition, Petitioner makes no claim that § 2255 is 10 inadequate or ineffective. 11 his claims in federal court, he must do so by way of a motion to 12 vacate or set aside pursuant to 28 U.S.C. § 2255.1 Should the Petitioner wish to pursue 13 The petition must be dismissed. 14 III. 15 Accordingly, the Court RECOMMENDS that the petition for writ Recommendation 16 of habeas corpus be DISMISSED because the petition does not 17 allege grounds that would entitle Petitioner to relief under 28 18 U.S.C. § 2241. 19 These findings and recommendations are submitted to the 20 United States District Court Judge assigned to the case, pursuant 21 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 22 the Local Rules of Practice for the United States District Court, 23 Eastern District of California. 24 being served with a copy, any party may file written objections 25 with the Court and serve a copy on all parties. Such a document Within thirty (30) days after 26 27 28 1 A petition for writ of habeas corpus pursuant to § 2255 must be filed in the court where the petitioner was originally sentenced. In this case, Petitioner challenges convictions and sentences adjudicated in the United States District Court for the Southern District of New York. 4 1 should be captioned “Objections to Magistrate Judge’s Findings 2 and Recommendations.” 3 and filed within fourteen (14) days (plus three (3) days if 4 served by mail) after service of the objections. 5 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 6 § 636 (b)(1)(C). 7 objections within the specified time may waive the right to 8 appeal the District Court’s order. 9 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 10 11 IT IS SO ORDERED. 12 Dated: ie14hj June 25, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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