United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW OR AMEND PETITION
Richard Creatura, United States Magistrate Judge.
proceeding pro se, initiated this matter on April
15, 2019 by filing a “motion for review of
sentence” under 28 U.S.C. § 2241, which the Clerk
docketed as a petition for habeas corpus. See Dkt.
1. The District Court has referred this matter to the
undersigned. See Dkt. 2.
reviewed the petition, Court is unable to determine whether
petitioner intends to bring her petition under 28 U.S.C.
§§ 2241 or 2255. Therefore, the Court directs
petitioner to file an amended petition on the appropriate
form by June 21, 2019 and to cure the deficiencies identified
is incarcerated in a federal institution in Alabama, where
she states that she is serving a 72-month sentence imposed by
the Honorable Robert J. Bryan, a District Judge for the
Western District of Washington, Tacoma, for “conspiracy
to distribute a listed chemical in violation of 21 [U.S.C.
§§] 841(c)(2) and 846.” See Dkt. 3,
at 2, 5. She appears to argue that the District Court should
have exercised its discretion and imposed a shorter sentence
on the basis that she cooperated with a government
investigation. See Dkt. 3, at 4.
requests relief under 28 U.S.C. § 2241, apparently in
the form of a shortened sentence. See Dkt. 3, at 1,
5. This appears to be the type of challenge to the legality
of a sentence that “must be filed under [28 U.S.C.]
§ 2255 in the sentencing court, ” before the
sentencing judge, in contrast to a challenge to “the
manner, location, or conditions of a sentence's
execution, ” which “must be brought pursuant to
§ 2241 in the custodial court.” Hernandez v.
Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per
curiam); see Rules Governing Section § 2255
Proceedings, Rule 4(a).
although motions challenging a sentence's legality should
generally be brought under § 2255, that statute's
saving clause provides that in limited circumstances, such a
challenge could be brought under § 2241: “a
federal prisoner may file a habeas corpus petition pursuant
to § 2241 to contest the legality of a sentence where
[her] remedy under § 2255 is ‘inadequate or
ineffective to test the legality of [her]
detention.'” Hernandez, 204 F.3d at 864-
65 (quoting 28 U.S.C. § 2255). In the Ninth Circuit, the
§ 2255 saving clause applies “where a petitioner
‘(1) makes a claim of actual innocence, and (2) has not
had an unobstructed procedural shot at presenting that
claim.'” Alaimalo v. United States, 645
F.3d 1042, 1047 (9th Cir. 2011) (quoting Stephens v.
Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (internal
quotation marks omitted)).
neither alleges that she is actually innocent nor attempts to
show that she has not had an “unobstructed procedural
shot” at presenting her claim regarding the length of
her sentence. Therefore, petitioner has not shown that her
petition is one properly brought under § 2241, rather
than § 2255. However, as noted above, petitioner states
that she seeks relief under § 2241-thus it is unclear
how petitioner wishes to proceed.
Ninth Circuit has made clear that “before proceeding to
any other issue, ” the Court “must first
determine whether a habeas petition is filed pursuant to
§ 2241 or § 2255.” Hernandez, 204
F.3d at 865. Because it is unclear from the petition whether
petitioner wishes to proceed under § 2241 or §
2255, the Court finds that petitioner must amend her petition
before a determination can be made regarding the statute
under which petitioner seeks relief and the appropriate forum
for her claims. This petition is properly before District
Judge Robert J. Bryan in the Western District of Washington,
Tacoma, if brought under § 2255, and before the Northern
District of Alabama, if brought under § 2241; the Court
will consider recommending transfer of this case to the
appropriate court and/or district once petitioner has filed
her amended petition.
the Court notes that if petitioner wishes to proceed under
§ 2241, she has incorrectly captioned her case-the
correct respondent is petitioner's custodian. See
Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (quoting
28 U.S.C. § 2242). If petitioner wishes to proceed under
§ 2255, she has correctly captioned this matter.
See Form Motion under 28 U.S.C. §
2255. If petitioner wishes to proceed under
§ 2255, she must further show that her petition complies
with the limitations period outlined in § 2255(f).
these reasons, the undersigned ORDERS that
if petitioner wishes to pursue this matter, she clarify
whether she intends to file a § 2241 or § 2255
action and file an amended petition on or before June
21, 2019. The amended petition shall be legibly
rewritten or retyped in its entirety, it should be an
original and not a copy, it should contain the same case
number, and it may not incorporate any part of the original
petition by reference. The amended petition will operate as a
complete substitute for the original petition and not a
supplement. The amended petition must be on a form provided
by this Court.
petitioner fails to adequately address the issues raised
herein and to file an amended petition on or before June 21,
2019, the undersigned may recommend dismissal of this action.
The Clerk shall provide petitioner with the forms for ...