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Fells v. United States

United States District Court, Ninth Circuit, California, E.D. California
Jun 5, 2015
1:15-cv-00552-BAM HC (E.D. Cal. Jun. 5, 2015)

Opinion


QASIM SHANE FELLS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. No. 1:15-cv-00552-BAM HC United States District Court, E.D. California. June 5, 2015

          ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND PETITION DEADLINE: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER ORDER DIRECTING THE CLERK TO SEND PETITIONER A BLANK PETITIONS FOR WRIT OF HABEAS CORPUS (§ 2241 and § 2255)

          BARBARA A. McAULIFFE, Magistrate Judge.

         On April 10, 2015, Petitioner, a federal prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner seeks an order vacating his sentence in light of the U.S. Supreme Court's holding in Rosemond v. United States, 134 S.Ct. 1240 (2014). Because Petitioner either (1) erroneously seeks to challenge his original sentence under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2255 or (2) fails to allege facts by which the Court can conclude that he is entitled to seek relief under § 2241 because the remedy available under § 2255 is inadequate or ineffective, the Court dismisses his petition with leave to amend.

         DISCUSSION

         A federal prisoner who seeks to challenge the validity or constitutionality of his federal conviction or sentence must do so by filing a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1161-62 (9th Cir. 1988); Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). In such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. A prisoner may not collaterally attack a federal conviction or sentence using a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, as Petitioner seeks to do in this case. Tripati, 843 F.2d at 1162.

         A prisoner challenging the manner, location, or conditions of the execution of his sentence may bring a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the district in which he is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). But a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention. Stephens, 464 F.3d at 897. Restrictions on the availability of a § 2255 motion cannot be avoided simply by filing a petition under 28 U.S.C. § 2241. Id.

         If a federal prisoner can demonstrate that the remedy available under § 2255 is "inadequate or ineffective to test the validity of his detention, " however, he may nonetheless seek relief under § 2241. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting 28 U.S.C. § 2255); Hernandez, 204 F.3d at 864-65. The exception is very narrow. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). The remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied or because a remedy under § 2255 is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964); Tripati, 843 F.2d at 1162-63; Williams v. Heritage, 250 F.2d 390, 390 (9th Cir. 1957); Hildebrandt v. Swope, 229 F.2d 582, 583 (9th Cir. 1956). Section 2255 only provides an inadequate and ineffective remedy, permitting a petitioner to proceed under § 2241, when (1) the petitioner makes an claim of actual innocence and (2) has never had an unobstructed procedural shot at presenting the claim. Stephens, 464 F.3d at 898. The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).

         Not only has Petitioner not demonstrated that § 2255 constitutes an inadequate or ineffective remedy for raising his claims, his petition is so vague and incomplete that the Court is unable to determine which statutory scheme is most appropriate or whether Petitioner could conceivably proceed with a petition brought pursuant to § 2241. Accordingly, the Court dismisses the petition with leave to amend in accordance with the discussion above. If Petitioner elects to proceed under § 2255, he is reminded to file the petition in the federal district court in which he was convicted and sentenced.

         CONCLUSION AND ORDER

         The Court hereby ORDERS:

1. The Petition for Writ of Habeas Corpus is DISMISSED with leave to amend.

2. If Petitioner elects to proceed with a petition pursuant to 28 U.S.C. § 2241, he shall file a first amended petition in compliance with this order no later than thirty (30) days from the date of service of this order.

3. If Petitioner elects to proceed with a petition pursuant to 28 U.S.C. § 2255, he shall file such petition in the federal district court in which he was convicted and sentenced.

4. The Clerk of Court is DIRECTED to send Petitioner form petitions for actions to be brought under both 28 U.S.C. § 2255 and 28 U.S.C. § 2241.

5. If Petitioner fails to file a first amended petition in this district no later than thirty (30) days from the date of service of this order, this Court may dismiss this matter, without prejudice, for failure to prosecute.

         IT IS SO ORDERED.

         United States District Court/Eastern District of California

         28 U.S.C. § 2241

         FORMS AND INSTRUCTIONS

         PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN FEDERAL CUSTODY UNDER 28 U.S.C. § 2241, et seq.

         CONTENTS OF THIS PACKET:

1. (form) "Petition for Writ of Habeas Corpus"

2. (form) "Application to Proceed in Forma Pauperis" - with information sheet

         INSTRUCTIONS - READ CAREFULLY

1. This petition must be an original (not a photocopy), legibly handwritten or typewritten, and signed by the petitioner under penalty of perjury. You must set forth CONCISELY (briefly and to the point) the answer to each question in the proper space on the form. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury.

2. If you have more than 4 grounds for relief, you may attach pages with the remaining grounds; however, the format of the attached pages must be the same as the petition and you must provide only a brief statement of facts. No citation to legal authority is required. A brief or memorandum in support of the petition may also be attached; however, the form petition must be complete in itself and may not simply refer to the attachments.

3. Only one sentence, conviction, or parole matter may be challenged in a single petition. If you challenge more than one, you must do so by separate petition.

4. The fee to file a petition for writ of habeas corpus is $5.00, and you should submit the fee with your petition. If you do not have the necessary filing fee, you may request permission to proceed in forma pauperis, in which event you must complete and submit an Application to Proceed In Forma Pauperis, setting forth information establishing your inability to prepay the fees. You must have an authorized officer at the penal institution complete the certificate as to the amount of money on deposit to your credit in any account in the institution. You must also submit a certified copy of your trust account statement reflecting the prior 6 months of transactions.

5. When the petition is fully completed, the original and two copies must be mailed to the Clerk of the United States District Court. You must determine which court has venue (venue is the proper place - court/district/division - for the trial of a lawsuit). Depending on the nature of your case, venue may be determined by factors such as (1) location of the institution in which you are confined, (2) location of the trial court where judgment was entered, (3) location where events occurred, or (4) residence of the respondent(s). If you send your petition to a court lacking venue, your case may be dismissed, transferred to another court, or mailed back to you.

6. The Fresno Division of the United States District Court is comprised of the following counties: Fresno, Calaveras, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolomne, and the address is as follows:

The Sacramento Division of the United States District Court is comprised of the following counties: Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Sutter, Tehama, Trinity, Yolo, and Yuba, and the address is as follows:

You should keep a copy of the petition for your records.

7. Once the petition is filed, the court will review it. You will be sent a copy of any order the court issues. Because of the large volume of cases filed by inmates pending in this court, the court WILL NOT ANSWER INQUIRIES concerning the status of your case.

8. You must keep the Clerk of the Court informed of any change of address. If you fail to do so, the Clerk cannot be responsible for your failure to receive Court orders. This could result in the dismissal of your case. (See Local Rules 11-110 and 83-182(d))

9. The Clerk of Court cannot provide copies of documents to litigants, except at a charge of fifty cents ($.50) per page. This charge also applies to litigants proceeding in forma pauperis. Therefore, you must keep copies of all documents submitted to the court for your own records.


Summaries of

Fells v. United States

United States District Court, Ninth Circuit, California, E.D. California
Jun 5, 2015
1:15-cv-00552-BAM HC (E.D. Cal. Jun. 5, 2015)
Case details for

Fells v. United States

Case Details

Full title:QASIM SHANE FELLS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Court:United States District Court, Ninth Circuit, California, E.D. California

Date published: Jun 5, 2015

Citations

1:15-cv-00552-BAM HC (E.D. Cal. Jun. 5, 2015)