Opinion
CIVIL ACTION NO. 1:02-CV-014-C
April 30, 2002
ORDER
Petitioner Rosales Bartolo-Gutierrez, acting pro se, filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 Challenging the Suspension of Deportation. The Respondent United States of America has filed a Response in Opposition to Petitioner's Petition for Writ of Habeas Corpus and Motion to Dismiss with a brief in support thereof and copies of Petitioner's relevant records. Petitioner has not filed a response or objections to the motion to dismiss.
Petitioner is currently incarcerated in the Flightline Unit of the Federal Correctional Institution at Big Spring, Texas, pursuant to a conviction for felony possession with intent to distribute methamphetamine in Criminal Action No. CR-94-560-ABC in the United States District Court for the Central District of California. After pleading guilty; Petitioner was sentenced on May 19, 1997, to 135 months' imprisonment in the Bureau of Prisons, to be followed by five years' supervised release, and a special assessment of $50.00. The Court understands Petitioner to complain in the instant petition that
1. his constitutional fights were violated when trial counsel failed to advise him prior to his plea of guilty that one of the consequences of his plea could be deportation or removal; and
2. The Board of Immigration Appeals failed to consider the hardship to Petitioner's children when it ordered that he be deported or removed.
To the extent that Petitioner complains about ineffective assistance of counsel at his plea of guilty or the voluntariness of his plea, his claims are more properly raised in a motion under 28 U.S.C. § 2255. The United States Court of Appeals for the Fifth Circuit has determined that
[a] writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 are distinct mechanisms for seeking post-conviction relief. A section 2241 petition on behalf of a sentenced prisoner attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration, and must be filed in the same district where the prisoner is incarcerated. A section 2255 motion, by contrast, `provides the primary means of collateral attack on a federal sentence.' Relief under section 2255 is warranted for errors cognizable on collateral review that occurred "at or prior to sentencing.' A section 2255 motion must be filed in the sentencing courtPack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990)) (internal citations omitted).
To the extent that Petitioner is challenging the ineffective assistance of his counsel at his guilty plea and sentencing, the Court finds that he is challenging events which occurred at or before his sentencing and such claims must be raised in a motion under § 2255 in the district court where he was sentenced. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000) (finding that although petitioner characterized his claim as a challenge to the legality of his detention under § 2241, he was actually challenging the manner in which his sentence was determined and the claim had to be raised in a § 2255 motion). Because Petitioner was sentenced in Criminal Action No. CR-94-560-ABC in the United States District Court for the Central District of California, this Court is without jurisdiction to hear his claim of ineffective assistance of counsel or to construe his petition as a motion under § 2255. See Ojo v. Immigration and Naturalization Service, 106 F.3d 680, 683 (5th Cir. 1997) ("Although a § 2241 petition attacking matters within the province of § 2255 should be construed as a § 2255 petition, . . . a court without jurisdiction to hear a § 2255 petition can hardly be expected to do that."). Cf. Pack v. Yusuff, 218 F.3d at 452 ("A section 2241 petition that seeks to challenge the validity of a federal sentence must either be dismissed or construed as a section 2255 motion.").
Because Petitioner was sentenced after the effective date of the Antiterrorism and Effective Death Penalty Act, he is subject to the statute of limitations enacted by the Act. Petitioner was sentenced on May 19, 1997, and his conviction became final on May 30, 1997, when the time expired for filing a direct appeal. Fed.R.App.P. 4(b). Under 28 U.S.C. § 2255, as amended by the Act, Petitioner had to file his motion under § 2255 on or before May 30, 1998. Thus, even if the instant petition were construed to be a motion filed under § 2255, it was filed on January 15, 2002, well over three years after the limitation period had expired.
As for Petitioner's complaints about the deportation proceedings, the Court has considered his pleadings, Respondent's answer and motion to dismiss, and the records attached to the answer, and finds that Petitioner has failed to show that he is incarcerated in "violation of the Constitution or laws or treaties of the United States" as required by 28 U.S.C. § 2241.
Accordingly, this Court finds that Respondent's Motion to Dismiss should be granted and Petitioner's Petition for Writ of Habeas Corpus should be denied and dismissed with prejudice.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are denied.