Toney v. United States

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 UNITED STATES OF AMERICA, Case Nos. 18-cr-1405-BAS-2; 21-cv-01657-BAS 12 Plaintiff, 13 v. ORDER DENYING WITHOUT PREJUDICE DEFENDANT’S 14 STEPHEN TONEY, SR., MOTION TO VACATE SENTENCE 15 Defendant. UNDER SECTION 2255 (ECF No. 543) [17] 18 On September 24, 2020, the Court sentenced Defendant Stephen Toney, Sr. to 19 seventy-four months of imprisonment for conspiracy to possess with an intent to distribute 20 a controlled substance under 21 U.S.C. §§ 841 (a)(1), 846. (ECF No. 496.)1 In sentencing 21 Mr. Toney, the Court recommended that he “be placed in the [Bureau of Prisons (‘BOP’)] 22 residential drug and alcohol program (‘RDAP’).” (Id.) 23 On September 21, 2021, Mr. Toney filed a Motion to Vacate, Set Aside, or Correct 24 Sentence under 28 U.S.C. § 2255 . (ECF No. 543.) Mr. Toney argues the BOP is 25 discriminating against him because it determined he is not eligible to enroll in the BOP’s [27] 1 The Court cites to the Electronic Case Filing (“ECF”) numbers in Defendant’s criminal case, [28] 1 |}RDAP. (/d. at 4.) Further, he argues successful completion of the program would take 2 || twelve months off of his sentence. (/d.) 3 “Generally, motions to contest the legality of a sentence must be filed under [28 4 ||U.S.C.] § 2255 in the sentencing court, while petitions that challenge the manner, location, 5 || or conditions of a sentence’s execution must be brought pursuant to [28 U.S.C.] § 2241 in 6 || the custodial court.” Hernandez v. Campbell, 204 F.3d 861 , 864—65 (9th Cir. 2000). 7 Upon review, Mr. Toney’s claim is not properly raised in a Section 2255 Motion in 8 || this Court. His claim challenges the manner in which the BOP is carrying out the execution 9 ||of his sentence. This type of challenge is brought under 28 U.S.C. § 2241 , not § 2255. See 10 || Hernandez, 204 F.3d at 864-65 ; see also Murphy v. Hood, 276 F.3d 475, 476 (9th Cir. 11 ||2001); Drake v. United States, No. CIV.A. 2:07-CV-00420, 2007 WL 2570194 , at *2 12 ||(S.D.W. Va. Aug. 31, 2007) (dismissing Section 2255 motion without prejudice because 13 defendant’s RDAP discrimination claim did not challenge the legality of the 14 || defendant’s sentence). 15 As mentioned, a challenge under § 2241 must be brought in the custodial court—the 16 || district where Mr. Toney is in custody. Mr. Toney is housed at the BOP’s facility in 17 || Lompoc, CA, which is in the Central District of California. Therefore, if Mr. Toney wishes 18 || to challenge the execution of his sentence under § 2241, he must file that challenge in the 19 ||U.S. District Court for the Central District of California. 20 Accordingly, the Court DENIES Defendant’s Section 2255 Motion without 21 ||prejudice. The Clerk shall dismiss and close the civil action in No. 21-cv-01657-BAS. 22 || Finally, because jurists would not find it debatable whether the Court’s determination that 23 Toney cannot bring this challenge under Section 2255 is correct, the Court declines to 24 issue a certificate of appealability. See 28 U.S.C. § 2253 (c)(1)(B); Slack v. McDaniel, 529 25 473, 484 (2000). 26 IT IS SO ORDERED. [27] 28 || DATED: October 14, 2021 ( ill A (Hyshan 6 How. Cynthia Bashant □□□ United States District Judge