Opinion
CIVIL ACTION NO. 1:02-CV-184-C
June 10, 2003
ORDER
Petitioner Hipoloto Coronado-Alcocer, acting pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 seeking judicial review of a prior removal proceeding. He was incarcerated in the Federal Correctional Institution in Big Spring, Texas, when he filed the instant petition.
Petitioner is incarcerated pursuant to a conviction and sentence in Cause No. DR-01-CR-116(01) in the United States District Court for the Western District of Texas, Del Rio Division, for the offense of illegal re-entry after deportation in violation of 8 U.S.C. § 1326. Petitioner pleaded guilty to the offense, and on July 23, 2001, he was sentenced to 24 months' incarceration in the United States Bureau of Prisons. He now complains that he was unconstitutionally convicted of illegal re-entry after deportation because he was never convicted of an aggravated felony, the judge ordering his removal failed to consider whether he should be excused from removal because of extreme hardship; the judge failed to determine whether he was statutorily entitled to a waiver under § 348 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996; and he was denied effective assistance of counsel at sentencing because counsel failed to raise these issues.
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 court.Pack v. Yusuff, 218 F.3d 448 (5th Cir. 2000) (quoting Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990)) (internal citations omitted). See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000) (holding that "[28 U.S.C.] § 2255 is the primary means of attacking a federal sentence," but "[28 U.S.C.] § 2241 is used to attack the manner in which the sentence is executed"). A § 2241 petition "that seeks to challenge the validity of a federal sentence must either be dismissed or construed as a section 2255 motion." Pack v. Yusuff, 218 F.3d at 452.
Petitioner's claims of ineffective assistance of counsel at sentencing are clearly challenges to events that occurred at or before his sentencing and such claims must be raised in a motion under § 2255 in the district court that sentenced him. 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 thus had to be raised in a motion under § 2255). Because Petitioner was sentenced in Cause No. DR-01-CR-l 16(01) in the United States District Court for the Western District of Texas, Del Rio Division, this Court is without jurisdiction to hear Petitioner's claims 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. Lee v. Wetzel, 244 F.3d 370, 374 (5th Cir. 2001) (holding that the "district of sentencing does not have jurisdiction to consider the merits of a § 2241 petition, unless the petitioner or his custodian is also located there").
As for Petitioner's claims that he was denied due process at his removal proceedings and his prior removal proceedings were constitutionally invalid, the Court finds that for the reasons set forth in Respondent's Motion to Dismiss and Brief in Support Thereof and the accompanying records, Petitioner's claims should be denied and dismissed with prejudice.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are denied.
JUDGMENT
For the reasons stated in the Court's Order of even date,
IT IS ORDERED, ADJUDGED, AND DECREED that Petitioner's claims of ineffective assistance of counsel are dismissed for want of jurisdiction and his challenges to the removal proceedings are dismissed with prejudice.