United States District Court, S.D. West Virginia, Bluefield
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley United States Magistrate Judge.
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
AND PETITIONER'S CLAIMS
The petitioner's conviction and direct appeal.
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withdrawn or rejected.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.
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.
The petitioner's section 2255 motion.
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
The petitioner's present section 2241 petition.
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.
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.
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 ...