Iruegas v. Dretke

Full title: ENRIQUE IRUEGAS v. DOUG DRETKE

Court: United States District Court, E.D. Texas, Sherman Division

Date published: Feb 7, 2005

Civil Action No. 4:04CV424 (E.D. Tex. Feb. 7, 2005)

Opinion

Civil Action No. 4:04CV424.

February 7, 2005

MEMORANDUM OPINION AND ORDER

DON D. BUSH, Magistrate Judge

Petitioner Enrique Iruegas brings his motion pursuant to 28 U.S.C. § 2254 to vacate, set aside or correct his sentence. The case was referred for findings of fact, conclusions of law and recommendations for the disposition of the case.

FACTUAL BACKGROUND

Petitioner was previously sentenced to a term of confinement in the Texas Department of Criminal Justice and released on supervised release. On October 22, 1999, Petitioner was arrested in San Antonio, Texas, for a violation of the Sex Offender Registration Act. As a result, Petitioner states he was "extradited" to Lamar County for failing to comply with conditions of probation, i.e., failing to register.

On February 22, 2000, in the 6^th District Court of Lamar County, Texas, Petitioner was convicted and sentenced to ten years confinement.

THE PETITION

Petitioner filed his petition attacking the calculation of his sentence. Petitioner seeks credit for time served. Petitioner states that he does not attack the validity of his conviction.

A petition for habeas corpus under 28 U.S.C. § 2241 is the proper method for challenging the manner in which a sentence is executed, United States v. Cleto, 956 F.2d 83 (5^th Cir. 1992). The petition must be filed where the prisoner is incarcerated. United States v. Gabor, 905 F.2d 76, 78 (5^th Cir. 1990). Since the Petitioner is incarcerated in Pampa, the case was improperly filed in the United States District Court for the Eastern District of Texas. For convenience of the parties and potential witnesses and in the interest of justice, the petition should be transferred to the Northern District, Amarillo Division for hearing and determination.

It is ORDERED Petitioner's Petition for Writ of Habeas Corpus, filed in case number 4:04cv424 is TRANSFERRED to Amarillo for hearing and determination.

SHERMAN COURT'S PRIOR REPORT AND RECOMMENDATION

This Court previously, on December 16, 2004, entered its Report and Recommendation. Because of today's finding, such Report and Recommendation is ORDERED WITHDRAWN.