Opinion
1:05-cv-01645-AWI-TAG HC.
May 17, 2007
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
On February 26, 2007, the Magistrate Judge assigned to the case filed a Report and Recommendation recommending that the petition for writ of habeas corpus be DISMISSED because the Petition did not allege grounds that would entitle him to relief under 28 U.S.C. § 2241. (Doc. 9). The Report and Recommendation was served on all parties and contained notice that any objections were to be filed within thirty days from the date of service of that order. On March 12, 2007, Petitioner filed objections to the Magistrate Judge's Report and Recommendation. (Doc. 10).
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, including Petitioner's objections, the Court concludes that the Magistrate Judge's Report and Recommendation is supported by the record and proper analysis. Petitioner's objections present no grounds for questioning the Magistrate Judge's analysis.
Petitioner's basic objection concerns the Magistrate Judge's conclusions that Petitioner's claims need to be brought pursuant to 28 U.S.C. § 2255 and not 28 U.S.C. § 2241 and Petitioner has not demonstrated that he falls within the one exception which would allow his claims to be brought under 28 U.S.C. § 2241. This objection is without merit. As correctly discussed by the Magistrate Judge, 28 U.S.C. § 2255 provides the exclusive procedure by which a federal prisoner may test the legality of his detention. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). "A federal prisoner authorized to seek relief under section 2255 may not petition for habeas corpus relief pursuant to section 2241." United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). As noted by the Magistrate Judge, there is one exception to this general rule. Section 2255 provides that while a court normally cannot consider a habeas corpus petition authorized under section 2255 unless it is brought in the sentencing court under section 2255, a petitioner can bring a petition under section 2241 if the remedy under section 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255. Thus, unless Petitioner can demonstrate that his remedy under 28 U.S.C. § 2255 is "inadequate or ineffective to test the validity of his detention" this court lacks jurisdiction to grant Petitioner relief through 28 U.S.C. § 2241. See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curiam), cert. denied, 528 U.S. 1178 (2000); Pirro, 104 F.3d at 299. The Magistrate Judge correctly concluded that Petitioner has failed to show has his remedy under section 2255 is inadequate or ineffective.
Petitioner's petition is based on Blakely v. Washington, 124 S.Ct. 2531 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), which found that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. Petitioner has failed to show why he was barred from raising anApprendi claim in his direct appeal or a prior Section 2255 petition. To the extent Petitioner contends that Section 2255 has been rendered inadequate and ineffective to protect his rights because Blakely was announced after his direct appeals were resolved, neitherApprendi nor Blakely have been made retroactive to cases on collateral review. See Rees v. Hill, 286 F.3d 1103, 1104 (9th Cir. 2002).
Accordingly, IT IS HEREBY ORDERED that:
1. The Report and Recommendation issued February 26, 2007 (Doc. 9), is ADOPTED IN FULL;
2. The petition for writ of habeas corpus (Doc. 1), is DISMISSED; and
3. The Clerk of Court is DIRECTED to ENTER JUDGMENT for Respondent and close the file.
This order terminates the action in its entirety.
IT IS SO ORDERED.