The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Pending before the Court is Petitioner Ben Aris Ramirez's petition for a writ of habeas corpus, which he has filed pursuant to 28 U.S.C. § 2241. He challenges his criminal conviction and sentence on the basis that he is actually innocent of the charge of 8 U.S.C. §§ 1326(a) and (b). (ECF No. 4 at 5).
For the reasons set forth below, the Court must dismiss the petition for lack of subject matter jurisdiction.
On September 17, 2007, following a not guilty plea, the U.S. District Court for the Southern District of Texas sentenced Petitioner to a term of imprisonment of 63 months, to be followed by a three-year term of supervised release, for his conviction of an Alien Unlawfully Found in the United States After Deportation, Having Previously Been Convicted of an Aggravated Felony, in violation of 8 U.S.C. §§ 1326(a) and (b). (ECF No. 12-1 at 13-18, Resp's Ex. 2, Judgment in United States v. Ramirez, No. 1:07-cr-00041 (S.D. Tex.)). Petitioner filed an appeal in which he contended that his prior conviction did not constitute a crime of violence for purposes of sentencing. He also asserted that the sentence imposed was unreasonable. On May 30, 2008, the U.S. Court of Appeals for the Fifth Circuit issued an Opinion affirming Petitioner's judgment of sentence. United States v. Ramirez, 280 F.App'x 345 (5th Cir. 2008). The U.S. Supreme Court denied a petition for writ of certiorari on October 6, 2008. Ramirez v. United States, 129 S.Ct. 324 (2008).
Petitioner did not file a timely motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. In October of 2009, he filed with the U.S. District Court for the Southern District of Texas a request to file a § 2255 motion out of time. On March 4, 2010, that court denied his request. See ECF Nos. 63 and 66 in United States v. Ramirez, No. 1:07-cr-00041 (S.D. Tex.) (available on PACER)).
Pending before this Court is Petitioner's request for habeas relief pursuant to 28 U.S.C. § 2241. Therein, he challenges his criminal conviction and sentence on the basis that he is actually innocent of the charge of 8 U.S.C. §§ 1326(a) and (b). (ECF No. 4 at 5). In the Answer (ECF No. 12), Respondent contends that the petition must be dismissed for lack of subject matter jurisdiction. Petitioner has filed a Reply (ECF No. 13) and brief (ECF No. 15).
1. Claims Generally Cognizable In Federal Habeas Corpus Proceedings
28 U.S.C. § 2255 permits a federal prisoner to challenge his or her sentence "upon the ground that [it] was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentences was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255. Congress, by enacting 28 U.S.C. § 2255, provided a specific avenue by which a defendant could attack his or her federal conviction or sentence. See Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009); Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam); Chambers v. Romine, 41 F.App'x. 525, 526 (3d Cir. 2002); Briggs v. Levi, 275 F.App'x 111, 112-13 (3d Cir. 2008) (per curiam); Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977); Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); Brown v. Mendez, 167 F.Supp.2d 723, 726 (M.D. Pa. 2001) ("As a general rule, a § 2255 motion 'supersedes habeas corpus and provides the exclusive remedy' to one in custody pursuant to a federal court conviction."), quoting Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d Cir. 1972) (per curiam). In contrast, "matters concerning the conditions of confinement or the execution of a sentence are within the subject matter jurisdiction of the court presiding in the district in which a prisoner is incarcerated." DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986) (per curiam), citing Lee v. United States, 501 F.2d 494, 500 (8th Cir. 1974). Such claims are properly brought in a petition for writ of habeas corpus under 28 U.S.C. § 2241. Cradle, 290 F.3d at 538-39; Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000). A habeas corpus petition "is not an additional, alternative or supplemental remedy to 28 U.S.C. § 2255." Myers v. Booker, No. 00-3232, 232 F.3d 902 (Table), 2000 WL 1595967, at *1 (10th Cir. Oct. 26, 2000).
Respondent correctly contends that this Court should dismiss the petition for want of subject matter jurisdiction because Petitioner is challenging the validity of his conviction and sentence. Accordingly, the issues raised in the instant petition are not within the jurisdiction of this Court.
2. The Savings Clause of 28 U.S.C. § 2255
Petitioner asserts that he is entitled to pursue the instant habeas action in this Court because the remedy under 28 U.S.C. § 2255 is inadequate and/or ...