United States District Court, D. Arizona
Honorable Jennifer G. Zipps, United States District Judge.
Jeronimo Miguel Hernandez, who is confined in the United
States Penitentiary-Tucson (USP-Tucson), filed a pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241 (Doc. 1). In a January 2, 2018 Order, the Court
directed Petitioner to pay the filing fee or file an
Application to Proceed In Forma Pauperis. On January 25,
2018, Petitioner filed a “Notice” (Doc. 5), in
which he states that he requested payment of the $5.00 filing
fee from his inmate trust account and requests that the Court
inform him that everything is in order. On April 10, 2018,
Petitioner paid the filing fee. The Court will dismiss this
case for lack of jurisdiction.
Petition, Petitioner names USP-Tucson Warden JT Shartle as
Respondent. Petitioner raises one ground for relief in which
he claims that he was wrongfully sentenced with a criminal
history category V, which “added 3 or 4 points
more.” Petitioner claims he was sentenced to a sentence
that is six months longer than it would have been if the
correct criminal category was used.
United States v. Hernandez, CR 14-00156-PHX-SPL,
Petitioner was convicted of Transportation of Illegal Aliens
after pleading guilty to the Information. On June 30, 2014,
Petitioner was sentenced to 30 months' imprisonment
followed by three years on supervised release. Petitioner was
released on April 8, 2016.
September 2, 2016, the probation officer filed a Petition to
Revoke Supervised Release (Doc. 36 in CR 14-00156). On
January 9, 2017, the Court issued an Order Revoking
Supervised Release (Doc. 55 in CR 14-00156) and committed
Petitioner to the custody of Bureau of Prisons for four
months, followed by 28 months on supervised release.
Petitioner was released on January 12, 2017.
January 30, 2017, the probation officer filed a second
Petition to Revoke Supervised Release (Doc. 56 in CR
14-00156). On June 22, 2017, Petitioner was arrested.
Petitioner admitted that he violated the terms and conditions
of his supervised release. On October 26, 2017, the Court
issued an Order Revoking Supervised Release (Doc. 81 in CR
14-00156) and committed Petitioner to the custody of the
Bureau of Prisons for 12 months, with no term of supervised
has not filed a § 2255 motion challenging either his
original conviction or sentence or his sentence on the
supervised release revocations.
motion to vacate sentence pursuant to 28 U.S.C. § 2255
is generally the appropriate method for challenging a
federally imposed conviction or sentence, including a
challenge 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.” 28 U.S.C. § 2255(a); Tripati v.
Henman, 843 F.2d 1160, 1162 (9th Cir.1988). A §
2241 petition for writ of habeas corpus is not a substitute
for a motion under § 2255. McGhee v. Hanberry,
604 F.2d 9, 10 (5th Cir. 1979).
Court will not consider a § 2241 petition by a prisoner
authorized to apply for § 2255 relief “if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e); United
States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). This
exception is narrow. Ivy v. Pontesso, 328 F.3d 1057,
1059 (9th Cir. 2003).
§ 2255 remedy is not inadequate or
ineffective merely because the statute of limitations bars
Petitioner from filing a motion under § 2255, the
sentencing court has denied relief on the merits, or §
2255 prevents Petitioner from filing a second or successive
petition. See Ivy, 328 F.3d at 1059; Moore v.
Reno, 185 F.3d 1054, 1055 (9th Cir. 1999); Charles
v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999);
Tripati, 843 F.2d at 1162. The § 2255 remedy
is inadequate or ineffective “when a
petitioner (1) makes a claim of actual innocence, and (2) has
not had an unobstructed procedural shot at presenting that
claim.” Harrison v. Ollison, 519 F.3d 952, 959
(9th Cir. 2008) (quoting Stephens v. Herrera, 464
F.3d 895, 898 (9th Cir. 2006)). In determining whether a
petitioner has had an unobstructed procedural shot to pursue
his claim, the court considers “(1) whether the legal
basis for petitioner's claim ‘did not arise until
after he had exhausted his direct appeal and first §
2255 motion;' and (2) whether the law changed ‘in
any way relevant' to petitioner's claim after that
first § 2255 motion.” Harrison, 519 F.3d
at 960 (quoting Ivy, 328 F.3d at 1060-61).
burden of coming forward with evidence affirmatively showing
the inadequacy or ineffectiveness of the § 2255 remedy
rests with the petitioner. McGhee, 604 F.2d at 10;
Redfield v. United States, 315 F.2d 76, 83 (9th Cir.
1963). Petitioner has failed to meet this burden because he
has not demonstrated that he has not had an unobstructed
procedural shot at presenting his sentencing claim.
Accordingly, the Court will dismiss the § 2241 Petition
and this case for lack of jurisdiction. See 28
U.S.C. § 2255(a); Tripati, 843 F.2d at 1163. .
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