United States District Court, D. Hawaii
ORDER DISMISSING DEFENDANT-PETITIONER'S MOTION
UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL CUSTODY
Wilsonas Ayala-Villanueva ("Defendant"), proceeding
pro se, has filed a Motion Under 28 U.S.C. § 2255, to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody ("§ 2255 Motion"), Doc. No. 841,
making a claim that (1) essentially has twice previously been
denied on collateral review, and (2) in any event, must be
brought under 28 U.S.C. § 2241. See, e.g.,
United States v. Giddings, 740 F.2d 770, 772 (9th
Cir. 1984) (holding that a claim seeking federal sentencing
credit for time spent in prior custody cannot be raised under
§ 2255, but may be brought under § 2241).
Construing the § 2255 Motion as a § 2241 petition,
the court lacks jurisdiction to consider the merits because
it must be brought in the district where the petitioner is in
custody (and Defendant is currently in custody in Oregon, not
Hawaii). See Stephens v. Herrera, 464 F.3d 895, 897
(9th Cir. 2006) ("[A] § 2241 petition must be filed
in the district where the petitioner is in custody.").
Accordingly, the action is DISMISSED without prejudice to
being re-filed in the district of Defendant's
court sentenced Defendant on July 7, 2008 to a term of 168
months imprisonment after he pleaded guilty to one count of
possession with intent to distribute 50 grams or more of
methamphetamine. Doc. No. 474 (Judgment); Doc. No. 345 (Plea
Agreement). Defendant was arraigned on August 24, 2007, Doc.
No. 153, based on an indictment returned on May 31, 2007.
Doc. No. 1. Prior to his arraignment, Defendant was in
custody of the Bureau of Immigration and Customs Enforcement
("ICE") on an immigration detainer. ICE had held
him from approximately April 15, 2005 until August 19, 2007,
when he was transferred to the District of Hawaii for
arraignment in this case. See, e.g., Doc. No. 683,
Order at 2-3, 20 n.14; Doc. No. 642-3, Kagiwada Decl. ¶
4. Defendant had originally been arrested by investigators in
this case on March 2, 2005 on Molokai, and he was
subsequently detained and transferred to Nevada based on an
outstanding warrant for a parole violation. Doc. No. 683,
Order at 2. Thereafter, he was transferred to ICE on the
the court sentenced Defendant on July 7, 2008, the court
specifically considered the prior custody, and substantially
reduced the sentence it otherwise would have imposed, given
that Defendant had been held for 28 months by ICE on the
immigration detainer (without otherwise receiving credit by
the Bureau of Prisons). See Doc. No. 636, Sentencing
Tr. at 3, 11, 14, 18, 29. In considering the prior custody,
along with sentencing factors in 18 U.S.C. § 3553(a),
the court's 168-month sentence was well below the
Sentencing Guidelines advisory range of 210 to 262 months.
See Id. at 5.
April 2, 2009, Defendant filed a Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence
("First § 2255 Motion"). Doc. No. 613. The
First § 2255 Motion raised several grounds, including
that his counsel was ineffective in failing to seek or obtain
credit for time served in ICE custody. Id. at 5-6,
Doc. No. 683, Order at 23. The court denied the First §
2255 Motion on October 23, 2009, reasoning in part that
counsel was not ineffective because she had indeed raised the
issue (and this court had in fact reduced Defendant's
sentence in light of the prior ICE custody). Id. The
court also denied a certificate of appealability. Doc. Nos.
683, 691. On appeal, the Ninth Circuit also denied a request
for a certificate of appealability. Doc. No. 724.
Defendant filed a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2241 in the U.S. District Court for the Western
District of Texas, seeking credit on his 168-month federal
sentence for the period from April 15, 2005 (when he was
taken into custody by ICE), until May 30, 2007 (when the
Indictment was filed). See Doc. No. 841, Mot. at 2;
see also Ayala-Villanueva v. Pearce, No. 13cv00415
(W.D. Tex. Feb. 14, 2014) (Doc. No. 19, Order Denying
Petition for Writ of Habeas Corpus under 28 U.S.C. §
2241, at 3). The District Court of the Western District of
Texas denied the § 2241 petition on February 14, 2014,
reasoning in part that Defendant had "effectively been
granted credit on his sentence for the time he spent in ICE
custody" because this court had taken that custody into
account when imposing Defendant's 168-month sentence.
See Ayala-Villanueva v. Pearce, No. 13cv00415 (W.D.
Tex. Feb. 14, 2014) (Doc. No. 19, Order Denying Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241, at
January 2, 2015, Defendant filed a Motion to Reduce Sentence
under 18 U.S.C. § 3582(c) based on Amendment 782 to the
Sentencing Guidelines ("Motion to Reduce
Sentence"). Doc. No. 821. The court denied the Motion to
Reduce Sentence on June 23, 2015, determining that Defendant
did not qualify for a sentence reduction because he had
received a sentence within the revised guideline range of 168
to 210 months. Doc. No. 836, Order at 3-4 (citing U.S.S.G.
17, 2016, Defendant filed the instant § 2255 Motion.
Doc. No. 841. He raises two claims for relief. First he
contends that "I have never been given any sentencing
credit for the time in ICE custody from April 15, 2005."
Id. at 4. Second, he contends that this court
"denied the motion 3582 because introduced (sic) a
variance in granting a reduction due to ‘harsh
time' . . . The ICE detention argued in Ground One
further should reduce the sentence to 140 months."
Id. at 5.
the claims in Defendant's § 2255 Motion seek -- for
at least the third time -- sentencing credit for
pre-indictment time spent in ICE custody. "A motion
under § 2255 is generally the exclusive remedy for a
federal prisoner who seeks to challenge the legality of
confinement." Muth v. Fondren, 676 F.3d 815,
818 (9th Cir. 2012) (citing Stephens, 464 F.3d at
897)). But a claim for sentencing credit "challenges the
Attorney General's execution of sentence rather that the
district court's imposition." Giddings, 740
F.2d at 772. "A petition under section 2255 can test
only the propriety of the sentence imposed, not the manner of
execution." Id. (citations omitted). Rather,
"[r]eview of the execution of a sentence may be had
through [a] petition for a writ of habeas corpus under 28
U.S.C. § 2241." Id. Accordingly,
Defendant's § 2255 Motion is construed as a §
2241 petition that challenges the execution of his
doing so, however, renders the court without jurisdiction to
review the merits of the challenge. Defendant is currently
confined at the Sheridan Federal Prison Camp, in Sheridan,
Oregon. See Doc. No. 841, Mot. at 1; see
also Federal Bureau of Prisons, Inmate Locator,
https://www.bop.gov/ inmateloc/ (last accessed June
13, 2016) (indicating Defendant is currently located at
Sheridan Federal Correctional Institution, with a release
date of Aug. 10, 2018). And "§ 2241 petitions must
be filed in the district where the petitioner is
confined[.]" Muth, 676 F.3d at 818. The court
thus "lacks jurisdiction to consider [Defendant's]
§ 2241 Petition because [he] is not incarcerated within
the District of Hawaii." United States v.
Greenfield, 2011 WL 3047706, at *2 (D. Haw. July 22,
2011) (dismissing § 2241 petition challenging amount of
credit for pre-trial custody, without prejudice to refiling
in place of incarceration).
foregoing reasons, this court DISMISSES this matter without
prejudice. Defendant, however, may attempt to re-file the
action in the jurisdiction of his confinement. To the extent
necessary, the court DENIES a certificate of appealability --
reasonable jurists would not find the court's rulings
debatable. See, e.g., Slack v. McDaniel, 529 U.S.
473, 484 (2000) (holding that a certificate of appealability
should issue only if a prisoner shows, among other things,
"that jurists of reason would find it debatable whether