Leyva v. Barrios

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 SERGIO LEYVA, Case No.: 20-CV-81 JLS (AHG) 12 Petitioner, ORDER (1) DISMISSING PETITION 13 v. FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 , 14 DIANE BARRIOS, Field Office Director; AND (2) DIRECTING CLERK OF U.S. DEPARTMENT OF HOMELAND 15 COURT TO OPEN NEW CASE SECURITY; U.S. IMMIGRATION AND UNDER 28 U.S.C. § 2255 16 CUSTOMS ENFORCEMENT, 17 Respondents. (ECF No. 1) [18] 19 Presently before the Court is Petitioner Sergio Leyva’s Petition for a Writ of Habeas 20 Corpus Under 28 U.S.C. § 2241 (“Pet.,” ECF No. 1). Petitioner is challenging the 21 “[v]alidity of [a guilty] plea based on ineffective assistance of counsel” in United States v. 22 Leyva, No. 15-CR-3033 JLS-2 (S.D. Cal. filed Dec. 8, 2015), id. at 3 , specifically counsel’s 23 “failure to advise of immigration consequences of plea.” Id. at 7 . Although Petitioner 24 claims that he is not “challenging the validity of [his] conviction or sentence as imposed” 25 pursuant to 28 U.S.C. § 2255 , id. at 5 , Petitioner ultimately requests that the Court “[v]acate 26 petitioner’s conviction.” Id. at 9 . 27 Section 2241 applies where a prisoner “is in custody in violation of the Constitution 28 or laws and treaties of the United States.” 28 U.S.C. § 2241 (c)(3). Section 2255, by 1 ||contrast, applies where “[a] prisoner in custody under sentence of a court established by 2 || Act of Congress [is] claiming the right to be released upon the ground that the sentence 3 || was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. 4 2255(a). In other words, a petition under Section 2241 challenges the manner of the 5 ||execution of a sentence, whereas Section 2255 challenges the propriety of the sentence 6 |/itself. See Doganiere v. United States, 914 F.2d 165, 169 (9th Cir. 1990). 7 Because Petitioner is challenging his sentence, rather than the conditions of his 8 ||confinement, it appears that his Petition is appropriately brought pursuant to 28 U.S.C. 9 2255, rather than 28 U.S.C. § 2241 . See Kreuzhage v. United States, 165 F.3d 916 (9th 10 || Cir. 1998) (dismissing § 2241 petition without prejudice to filing of a motion pursuant to 11 || § 2255 where the petitioner’s “quarrel is with the sentencing court and its imposition of the 12 ||amended sentence’) (unpublished); see also Stephens v. Herrera, 464 F.3d 895, 897 (9th 13 2006) (“[R]estrictions on the availability of a § 2255 motion cannot be avoided 14 |/through a petition under 28 U.S.C. § 2241 .”). The Court therefore DISMISSES the 15 || Petition pursuant to 28 U.S.C. § 2241 as improperly pled and DIRECTS the Clerk of the 16 || Court to open a new case under 28 U.S.C. § 2255 . 17 IT IS SO ORDERED. [18] 19 ||Dated: January 14, 2020 (een 0 on. Janis L. Sammartino United States District Judge