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Beltran-Moreno v. Masters

United States District Court, S.D. West Virginia, Bluefield

April 17, 2018

JOSE ANGEL BELTRAN-MORENO, Petitioner,
v.
BART MASTERS, Warden, FCI McDowell, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley United States Magistrate Judge.

         Pending before the court is the petitioner's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (ECF No. 1). The petitioner paid the applicable $5.00 filing fee. This matter is assigned to the Honorable David A. Faber, Senior United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons stated herein, it is respectfully RECOMMENDED that the presiding District Judge DENY the petitioner's section 2241 petition (ECF No. 1) and DISMISS this matter from the docket of the court.

         BACKGROUND AND PETITIONER'S CLAIMS

         A. The petitioner's conviction and direct appeal.

         On March 8, 2007, the petitioner pled guilty in the United States District Court for the District of Arizona to six counts related to his role in a drug conspiracy, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2, as well as two counts of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). United States v. Beltran-Moreno, No. 05-cr-00546-003 (D. Ariz. Mar. 8, 2007). According to the record of the petitioner's criminal proceedings and the instant petition, two prior attempts by the petitioner to enter a guilty plea were withdrawn or rejected. On July 26, 2007, the petitioner was sentenced to an aggregate term of 420 months of imprisonment, to be followed by a five-year term of supervised release. Id., Judgment, ECF No. 392.

         The petitioner's convictions and sentence were affirmed by the United States Court of Appeals for the Ninth Circuit on February 10, 2009. United States v. Beltran-Moreno, 556 F.3d 913 (9th Cir. 2009), amended by Order entered on March 10, 2009. The petitioner did not file a petition for a writ of certiorari in the United States Supreme Court. Thus, his judgment became final on or about June 10, 2009.

         B. The petitioner's section 2255 motion.

         On January 28, 2010, the petitioner filed a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 in the United States District Court for District of Arizona. Beltran-Moreno v. United States, No. 10-cv-00205, ECF No. 1 (D. Az. Jan. 28, 2010). He subsequently filed an Amended Motion on February 22, 2010. Id., ECF No. 5. As grounds for relief in the Amended Motion, the petitioner alleged various claims of ineffective assistance of counsel and violations of due process in both the district court proceedings and on appeal. Id. On August 5, 2011, the Arizona District Court denied the petitioner's section 2255 motion. United States v. Beltran-Moreno, Nos. 05-cr-00546; 10-cv-205, 2011 WL 6780792 (D. Az. Dec. 12, 2011); vacated and superseded by United States v. Beltran-Moreno, 2012 WL 160173 (D. Az. Jan. 19, 2012). The Ninth Circuit thereafter denied a certificate of appealability on June 20, 2012. United States v. Beltran-Moreno, No. 12-15173 (9th Cir. June 20, 2012).

         C. The petitioner's present section 2241 petition.

         On August 21, 2015, the petitioner filed the instant section 2241 petition (ECF No. 1), asserting multiple claims of ineffective assistance of counsel related to his guilty plea process and his counsel's advice concerning his sentencing exposure; claims which either were raised, or should have been raised, in his prior section 2255 proceeding in the Arizona District Court. Because it is apparent from the face of the petition that the petitioner is not entitled to relief in this district court, the undersigned has not required the respondent to answer the petition.

         ANALYSIS

         All of the petitioner's claims challenge the validity of his convictions and sentence, and not the manner in which his sentence is being executed. Motions under 28 U.S.C. § 2255 are the primary remedy for testing the validity of federal judgments and must be filed in the court of conviction, which, in this case, is the United States District Court for the District of Arizona. While, normally, a section 2255 motion filed in a court other than the sentencing court should be transferred to the sentencing court, because the petitioner already unsuccessfully filed a section 2255 motion in the District of Arizona and, apparently, has not received authorization from the United States Court of Appeals for the Ninth Circuit to file a second or successive section 2255 motion, to the extent that the instant petition may be construed as a section 2255 motion, it would be futile to transfer it to the District of Arizona because it would be procedurally barred.

         A petition filed under 28 U.S.C. § 2241 is generally used to address matters concerning the execution of a federal sentence, and is not an additional, alternative or supplemental remedy to that provided in section 2255, unless the petitioner can show that the remedy under section 2255 is inadequate or ineffective to test the legality of the petitioner's detention. In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (“[W]hen § 2255 proves ‘inadequate or ineffective to test the legality of . . . detention,' a federal prisoner may seek a writ of habeas corpus pursuant to § 2241.”). In re Jones relies upon the statutory language presently found in 28 U.S.C. § 2255(e), which states:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained 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 ...

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