Opinion
No. CV 03-7344 AHM (FMO).
April 5, 2004
ORDER TRANSFERRING ACTION TO THE NORTHERN DISTRICT OF TEXAS
On October 14, 2003, petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody ("Petition") pursuant to 28 U.S.C. § 2241. On February 19, 2004, respondent filed a Motion to Dismiss the Petition ("Motion"), asserting that the Court lacks jurisdiction because the Petition concerns a conviction and sentence sustained in the Northern District of Texas and, therefore, should have been filed in that jurisdiction as a motion under 28 U.S.C. § 2255. (Motion at 1-2). Petitioner did not file an Opposition to respondent's Motion.
Petitioner's Opposition to respondent's Motion was due on March 22, 2004. (Court's Order of February 20, 2004J). Pursuant to Local Rule 7-12, the Court deems petitioner's failure to file an Opposition as consent to the granting of respondent's Motion.
Having concluded that it lacks the requisite jurisdiction to entertain the Petition, the Court finds that, pursuant to 28 U.S.C. § 1631, this matter should be transferred to the United States District Court for the Northern District of Texas.
PRIOR PROCEEDINGS
On January 25, 2001, in the United States District Court for the Northern District of Texas, petitioner pled guilty to the charge of being a felon in possession of a firearm (18 U.S.C. § 992(g)(1)). (Motion, Exh. A at 18). Petitioner was sentenced to a term of 115 months in federal prison. (Id., Exh. A at 20).
On November 19, 2001, petitioner filed a motion pursuant to 28 U.S.C. § 2255 in the Northern District of Texas, alleging that his trial counsel rendered ineffective assistance. (Motion, Exh. D). The motion was denied on December 9, 2002. (Id., Exh. F).
PETITIONER'S CLAIMS
Petitioner raises the following contentions in his Petition:
1. Petitioner's due process rights were violated when he was improperly indicted by a grand jury. (Petition at 3).
2. Petitioner's due process rights were violated when the trial court improperly enhanced his sentence. (Id. at 3).
DISCUSSION
Unless otherwise indicated, all section references are to Title 28 of the United States Code.
Although petitioner was convicted in the Northern District of Texas, he is in custody and filed the instant Petition in this District. A § 2241 petition must be brought in the district where the petitioner is in custody whereas a § 2255 motion must be brought in the district where the petitioner was convicted or sentenced. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam).
"In general, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention."Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). However, § 2255 contains a "savings clause" or "escape hatch" that allows a prisoner to file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255; Lorentsen, 223 F.3d at 953; Hernandez, 204 F.3d at 864-65. The Ninth Circuit recently stated that the "inadequate or ineffective" "exception is narrow, and that § 2255's remedy is not `inadequate or ineffective' merely because § 2255's gatekeeping provisions prevent the petitioner from filing a second or successive petition." Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003) (citations omitted). Thus, because petitioner was convicted and sentenced in the Northern District of Texas, this Court can decide petitioner's current Petition only if the "savings clause" of § 2255 applies. See Hernandez, 204 F.3d at 865-66.
Section 2255 provides, in part, as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be release upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C. § 2255 (emphasis added).
Having reviewed the Petition, the Court has determined that it is not a § 2241 habeas corpus action. See Hernandez, 204 F.3d at 865 ("[A] court must first determine whether a habeas petition is filed pursuant to § 2241 or § 2255 before proceeding to any other issue."). Rather, the Petition falls squarely within the purview of § 2255. For example, petitioner contends that his due process rights were violated because he was improperly indicted and his sentence was improperly enhanced. (Petition at 3). Petitioner's contentions challenge the validity of his current sentence by collaterally attacking the manner of his conviction and/or terms of his sentence. (See Petition at 3; Motion at 4-7). They do not challenge the "manner, location, or conditions of" petitioner's current sentence for violation of 18 U.S.C. § 992(g)(1). See Hernandez, 204 F.3d at 864.
Finally, there is nothing in the record to suggest that a § 2255 motion is an inadequate or ineffective remedy. Nor has petitioner argued or otherwise demonstrated that such a remedy is inadequate or ineffective. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) ("the burden of coming forward with evidence to show the inadequacy or ineffectiveness of a motion under § 2255 rests squarely on the petitioner"). Because the savings clause of § 2255 does not apply in this case, the Court does not have jurisdiction to consider the Petition.
Petitioner's only avenue for relief is through a § 2255 motion. Accordingly, the Court will construe the Petition as a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. The Court, however, does not have jurisdiction to consider petitioner's § 2255 motion because it must be brought in the district where he was convicted or sentenced. Hernandez, 204 F.3d at 865; United States v. Monreal, 301 F.3d 1127, 1130 (9th Cir. 2002), cert. denied, 537 U.S. 1178, 123 S.Ct. 1008 (2003). The proper venue for such a motion is the Northern District of Texas, where petitioner was convicted and sentenced.
Accordingly, IT IS ORDERED THAT:
1. Respondent's Motion to Dismiss (Document No. 6) is granted.
2. The instant Petition shall be construed as a Motion under 28 U.S.C. § 2255.
Although the record indicates that petitioner filed a § 2255 motion in the Northern District of Texas, which was denied on December 9, 2002, the Court takes no position as to whether the instant Petition constitutes a successive petition.
3. Pursuant to 28 U.S.C. § 1631, this action is hereby transferred to the United States District Court for the Northern District of Texas.