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Cano-Bahena v. United States

United States District Court, D. Kansas

January 31, 2019

GILBERTO CANO-BAHENA, Petitioner,
v.
UNITED STATES OF AMERICA AND ROBERT FARLEY, Warden Respondents.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE

         Gilberto Cano-Bahena, an inmate at the Great Plains Correctional Institution in Hinton, Oklahoma, filed this pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Cano-Bahena alleges that his federal criminal sentence is unlawful because he received ineffective assistance of counsel at the plea and sentencing stages of his proceedings.[1] Upon review of the record, the Court construes Cano-Bahena's filing as a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 and transfers it to his criminal proceeding in No. 14-cr-20066-JAR.

         Cano-Bahena pleaded guilty to one count of aiding and abetting a codefendant in knowingly and intentionally possessing with the intent to distribute five grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2, and then unsuccessfully moved to withdraw his plea.[2] He was then sentenced to a term of imprisonment of 108 months.[3] The Tenth Circuit Court of Appeals affirmed this Court's denial of his motion to withdraw plea, as well as two aspects of his sentence.[4] Cano-Bahena now petitions the Court for habeas relief, on the grounds that (1) his counsel promised he would receive a sentence of 60 months; (2) counsel erroneously advised him he was not safety-valve eligible; (3) one of his codefendants received a reduced sentence; (4) he is eligible for a sentence reduction under the First Offender Guidelines; and (5) counsel did not advise him of his rights on appeal.

         Cano-Bahena challenges the legality of his federal sentence, and such claims must normally be raised in a § 2255 motion in the sentencing court-in this case, the District of Kansas, before the undersigned.[5] Section 2241 petitions, however, are “brought in the district where the prisoner is confined, [and] are generally reserved for complaints about the nature of a prisoner's confinement, not the fact of his confinement.”[6] Cano-Bahena's petition does not challenge the condition of his confinement, but rather brings a collateral attack on his conviction. “Under these circumstances, a district court would normally dismiss [petitioner's] § 2241 petition without prejudice so that he might refile it as a § 2255 motion in the appropriate sentencing court.”[7] Alternatively, a district court could construe petitioner's petition as a § 2255 motion and transfer it to the sentencing court for review.[8]

         Section 2255(e) includes a “savings clause” that allows a federal prisoner to resort to § 2241 to challenge the legality of his detention, not just the conditions of his confinement, when “the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his detention.”[9] Cano-Bahena asserts that § 2255 is inadequate because the one-year statute of limitations has run to file a § 2255 petition and because he has never been afforded an appeal. But his argument is mistaken on both counts, as he did take a direct appeal from his conviction, and the one-year statute of limitations runs from the date his conviction became final-in this case, ninety days after the Tenth Circuit issued its judgment, or one year after the time for filing a certiorari petition expired.[10] The judgment was issued by the Tenth Circuit on November 2, 2017, [11] so it became final on January 31, 2018, and the time to file a timely § 2255(f)(1) claim expires on January 31, 2019. Thus, the savings clause is inapplicable and Cano-Bahena cannot proceed with his claim under § 2241. Accordingly, the Court denies without prejudice Cano-Bahena's claim under § 2241, but will construe his submission as a § 2255 motion, which the Court transfers to his criminal proceeding in this District.

         IT IS THEREFORE ORDERED BY THE COURT that Petitioner Gilberto Cano-Bahena's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1) is denied without prejudice; the Court construes Petitioner's submission as a motion under 28 U.S.C. § 2255, and transfers this matter to No. 14-cr-20066-JAR. The clerk is directed to date the filing of Petitioner's § 2255 motion as November 26, 2018, the date he filed his § 2241 petition.

         IT IS SO ORDERED.

---------

Notes:

[1]Doc. 1.

[2]United States v. Cano-Bahena, D. Kan. No. 14-cr-20066-JAR, Docs. 78, 142, 146.

[3]Id. Doc. 152.

[4] United States v. Cano-Bahena, 713 Fed.Appx. 753, 760 ...


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