United States District Court, D. Kansas
MEMORANDUM AND ORDER
A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE
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. 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.
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. He was then
sentenced to a term of imprisonment of 108
months. 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. 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.
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. 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.” 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.” Alternatively, a district court could
construe petitioner's petition as a § 2255 motion
and transfer it to the sentencing court for
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.” 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. The judgment
was issued by the Tenth Circuit on November 2, 2017,
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.
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.
IS SO ORDERED.
United States v. Cano-Bahena,
D. Kan. No. 14-cr-20066-JAR, Docs. 78, 142, 146.
Id. Doc. 152.
United States v. Cano-Bahena,
713 Fed.Appx. 753, 760 ...