Opinion
CIVIL ACTION NO. 6:03-CV-036-C
June 9, 2003
ORDER
Petitioner Salvador Alvarez-Chavarria, acting pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on May 27, 2003, challenging his conviction and sentence in Criminal Case No. 6:03-M-0114. The Respondents have not filed an answer, but the Court has considered this petition and is of the opinion that Petitioner has failed to show that he is entitled to relief. See Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.").
Petitioner was arrested on April 15, 2003, and he was charged with illegally entering and being present in the United States after having been granted a voluntary departure from the country on six prior occasions in violation of 8 U.S.C. § 1325 and 1329. On April 17, 2003, Petitioner waived his right to an attorney, consented to proceed before the United States Magistrate Judge, and pleaded guilty to the complaint. The Magistrate Judge then sentenced Petitioner to 179 days' incarceration in the United States Bureau of Prisons and ordered that he pay a $10.00 special assessment and a $250.00 fine. Petitioner concedes that he neither appealed his conviction and sentence nor filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Petitioner complains that although he was charged with illegal re-entry and sentenced to six months' incarceration, the other persons arrested at the same time were not charged with any offense and were merely sent back to Mexico. He suggests that he should not have been convicted and sentenced but should have been treated the same as the other persons and returned to Mexico instead of being incarcerated.
The United States Court of Appeals for the Fifth Circuit has determined that
A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 are distinct mechanisms for seeking post-conviction relief. A section 2241 petition on behalf of a sentenced prisoner attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration, and must be filed in the same district where the prisoner is incarcerated A section 2255 motion, by contrast, `provides the primary means of collateral attack on a federal sentence.' Relief under section 2255 is warranted for errors cognizable on collateral review that occurred `at or prior to sentencing.' A section 2255 motion must be filed in the sentencing court.Pack v. Yusuff, 218 F.3d 448 (5th Cir. 2000) (quoting Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990)) (internal citations omitted). See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000) (holding that "[28 U.S.C] § 2255 is the primary means of attacking a federal sentence," but "[28 U.S.C] § 2241 is used to attack the manner in which the sentence is executed"). The Fifth Circuit Court of Appeals has approved the recharacterization of pro se prisoner complaints "according to the essence of the prisoner's claims, regardless of the label that the prisoner places on his complaint." Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 n. 1 (5th Cir. 1987). Thus, a § 2241 petition "that seeks to challenge the validity of a federal sentence must either be dismissed or construed as a section 2255 motion." Pack v. Yusuff, 218 F.3d at 452.
Petitioner's challenge to his conviction and sentence should have been raised on appeal or in a motion to vacate under § 2255 because he is challenging the legality of his incarceration. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000) (finding that although petitioner characterized his claim as a challenge to the legality of his detention under § 2241, he was actually challenging the manner in which his sentence was determined and the claim thus had to be raised in a motion under § 2255).
Although the United States Magistrate Judge accepted Petitioner's plea of guilty and sentenced him pursuant to his consent under 28 U.S.C. § 636, this Court has jurisdiction to hear Petitioner's motion to vacate, set aside, or correct his sentence. See United States v. Johnston, 258 F.3d 361, 372 (5th Cir. 2001) (holding that a federal prisoner may not consent to have a magistrate judge consider his § 2255 motion); United States v. Bryson, 981 F.2d 720, 726.
"[R]elief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995) (quoting United States v. Acklen, 47 F.3d 739, 741 (5th Cir. 1995)). Pursuant to the Supreme Court's decision in Bousley v. United States, 523 U.S. 614, 621-623 (1998), a federal prisoner can move for relief under § 2255 after a plea of guilty only if: "(1) the plea was not entered voluntarily or intelligently, . . . or (2) the petitioner establishes that he is actually innocent of the underlying crime." United States v. Sanders, 157 F.3d 302, 305 (5th Cir. 1998) (internal citations omitted). Petitioner argues neither that he is actually innocent of illegal re-entry nor that his guilty plea was involuntary or unintelligent Moreover, Petitioner has not demonstrated that his claim could not have been raised on direct appeal. See Bousley v. United States, 523 U.S. at 620 (holding that "the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review"). Finally, the Court notes that Petitioner has also failed to demonstrate that the United States Magistrate Judge was without jurisdiction to impose his sentence; his sentence exceeds the statutory maximum; or his sentence was imposed in violation of the Constitution of the United States. United States v. Placente, 81 F.3d 555, 558 (5th cir. 1996). See United States v. Deville, 278 F.3d 500, 510 (5th Cir. 2002) (quoting United States v. Atkins, 618 F.2d 366, 373-374 (5th Cir. 1980) (citations omitted)) ("A defendant cannot rely upon the sentences which other defendants receive as any yard stick for his sentence,"); United States v. Lawrence, 179 F.3d 343, 347-348 (5th Cir. 1999) (noting that the Fifth Circuit has never held that similarly situated defendants must be treated identically and the government has "discretion to decide which individuals to prosecute, which offenses to charge, and what measure of punishment to seek").
For the reasons stated above, the Court finds that:
1. Even though Petitioner has filed his petition "under 28 U.S.C that are more properly raised in a motion under 28 U.S.C. § 2255.
2. Petitioner has failed to demonstrate that his plea of guilty or his sentence were imposed in violation of the laws or Constitution of the United States. Accordingly, the Court finds that Petitioner's request to vacate, set aside, or correct his sentence should be DENIED and dismissed with prejudice.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are hereby denied.
JUDGMENT
For the reasons stated in the Court's Order of even date,IT IS ORDERED, ADJUDGED, AND DECREED that the above-styled and numbered cause is dismissed with prejudice.