(HC) Hodge v. Matevousian, No. 1:2018cv00276 - Document 4 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Lack of Jurisdiction signed by Chief Judge Lawrence J. O'Neill on 02/28/2018. Referred to Judge O'Neill; Objections to F&R due by 4/3/2018.(Flores, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY PRESKY HODGE, 12 13 14 Petitioner, v. No. 1:18-cv-00276-SKO HC FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR LACK OF JURISDICTION ANDRE MATEVOUSIAN, 15 Respondent. COURT CLERK TO ASSIGN DISTRICT JUDGE 16 (Doc. 1) 17 18 19 Petitioner, Jimmy Presky Hodge, is a federal prisoner proceeding pro se with a petition for 20 writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges the computation of his 21 sentence. 22 I. 23 Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary 24 Screening Requirement review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 25 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 26 27 28 Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it appears 1 1 that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson, 2 440 F.2d 13, 14 (9th Cir. 1971). 3 II. Procedural and Factual Background 4 On December 12, 2008, Petitioner pled guilty to one count of interference with commerce 5 6 by threats and violence (18 U.S.C. 1951) in the United States District Court for the District of 7 Arizona. (Doc. 1 at 26.) Petitioner was sentenced to 15 to 25 years imprisonment with credit for 8 time served in federal custody. Id. at 28. Petitioner is currently incarcerated at the United States 9 Penitentiary in Atwater, California (“USP-Atwater”). Id. at 1. 10 11 On February 26, 2018, Petitioner filed his petition for writ of habeas corpus, alleging that he did not receive credit for his time served in federal custody. Id. at 3. 12 13 III. No § 2241 Jurisdiction For Sentencing Claims A federal prisoner who seeks to challenge the validity or constitutionality of his federal 14 conviction or sentence must do so by filing a motion to vacate, set aside, or correct the sentence 15 under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1161-62 (9th Cir. 1988); Stephens v. 16 Herrera, 464 F.3d 895, 897 (9th Cir. 2006). In such cases, only the sentencing court has 17 jurisdiction. Tripati, 843 F.2d at 1163. A prisoner may not collaterally attack a federal 18 conviction or sentence using a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, as 19 Petitioner does in this case. Tripati, 843 F.2d at 1162. 20 A prisoner challenging the manner, location, or conditions of the execution of his sentence 21 may bring a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the district in which he 22 is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 23 2000). But a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner 24 may test the legality of his detention. Stephens, 464 F.3d at 897. Restrictions on the availability 25 of a § 2255 motion cannot be avoided by filing a petition under 28 U.S.C. § 2241. Id. 26 Since Petitioner challenges the sentence imposed by the District of Arizona rather than the 27 administration of his sentence at USP-Atwater, proper procedure required him to file a motion 28 2 1 pursuant to § 2255 in the District of Arizona rather than a petition pursuant to § 2241 in this 2 Court. 3 If a federal prisoner can demonstrate that the remedy available under § 2255 is 4 "inadequate or ineffective to test the validity of his detention," however, he may nonetheless seek 5 relief under § 2241. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting 28 U.S.C. 6 § 2255); Hernandez, 204 F.3d at 864-65. The exception is very narrow. Ivy v. Pontesso, 328 7 F.3d 1057, 1059 (9th Cir. 2003). 8 inadequate or ineffective merely because a prior § 2255 motion was denied or because a remedy 9 under § 2255 is procedurally barred. See Aronson v. May, 85 S. Ct. 3, 5 (1964); Tripati, 843 F.2d 10 at 1162-63; Williams v. Heritage, 250 F.2d 390, 390 (9th Cir. 1957); Hildebrandt v. Swope, 229 11 F.2d 582, 583 (9th Cir. 1956). The burden is on the petitioner to show that the remedy is 12 inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). The remedy under § 2255 usually will not be deemed 13 Petitioner has not demonstrated that § 2255 constitutes an inadequate or ineffective 14 remedy for raising his claims. As such, § 2241 is not the proper statute for raising Petitioner's 15 claims, and the undersigned recommends that the Court dismiss the petition for lack of 16 jurisdiction. 17 III. 18 Certificate of Appealability A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 19 district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. 20 21 22 23 24 25 26 27 28 Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides: (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 3 1 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 2 3 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 4 5 (B) the final order in a proceeding under section 2255. 6 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 7 8 (3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2). 9 10 11 If a court denies a habeas petition, the court may only issue a certificate of appealability 12 "if jurists of reason could disagree with the district court's resolution of his constitutional claims 13 or that jurists could conclude the issues presented are adequate to deserve encouragement to 14 15 proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate 16 17 18 "something more than the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at 338. 19 Reasonable jurists would not find the Court's determination that it lacks jurisdiction over 20 the above-captioned § 2241 petition to be debatable or wrong, or conclude that the issues 21 presented required further adjudication. Accordingly, the Court recommends declining to issue a 22 certificate of appealability. 23 IV. Conclusion and Recommendation 24 The undersigned recommends that the Court dismiss the Petition for writ of habeas corpus 25 26 for lack of jurisdiction and decline to issue a certificate of appealability. 27 // 28 // 4 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty 3 4 (30) days after being served with these Findings and Recommendations, Petitioner may file written objections with the Court. The document should be captioned AObjections to Magistrate 5 6 Judge=s Findings and Recommendations.@ Petitioner is advised that failure to file objections 7 within the specified time may constitute waiver of the right to appeal the District Court's order. 8 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 9 1391, 1394 (9th Cir. 1991)). 10 The Court Clerk is hereby directed to assign a district judge to this action. 11 12 IT IS SO ORDERED. 13 Dated: February 28, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 .
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