Free Order on Motion to Vacate (2255) - District Court of Arizona - Arizona

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6 IN THE UNITED STATES DISTRICT COURT `
7 FOR THE DISTRICT OF ARIZONA I. ____ .-.
; United States of America, N0. CR O4-675-PHX-JAT .
10 Plaintifi g Ns. cv ceases-Pax-.1Ar (esi;)
11 v. g ORDER
Ramon Arnulfo Yanez-Aguirre,
E Defendant/Movant. )
14 Movant Ramon Arnulfo Yanez-Aguirre ("Movant"), who is confined in the Reeves
15 County Detention Center in Pecos, Texas, filed a pm se "Motion For Time Reduction by an
16 Inmate in Federal Custody (28 U.S.C. § 2255)," while he was held at the Central Arizona
17 Detention Center. (Doc.# 170.)] That motion was denied with leave to file an amended
18 motion on the proper form and setting forth his claims for relief. (Doc.# 177.) Movant
19 thereafter tiled an Amended Motion to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody."2 (Doc.# 185.) The Amended Motion will be denied and the action
20 dismissed.
21 I. Background
22 Movant pleaded guilty to conspiracy to possess with the intent to distribute marijuana,
23 a violation of 21 U.S.C. § 846(a)(1) and (h)(1)(B)(vii). (Doc.# 162.) On March 20, 2006,
24 he was sentenced by this Court to a term of 37 months. (Doc.# 163.) Movant did not file an
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26 I "Doc.#" refers to the docket number of documents filed in the criminal case.
27 l U 2 Movant thereafter sent a letter to the Court. (Door? 214.) It is improper for a
litigant to contact the Court without notice to the other parties. Movant’s letter will be
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1 appeal.
2 Movant seeks relief on two claims. First, Movant alleges that because he is not an
3 American citizen, he is precluded from a one-year reduction of his sentence for participating
4 in a drug program during incarceration. (Doc.# 185 at 4.) Second, he alleges that because
5 he is not an American citizen, he is precluded from early release to a half—way house pursuant
to 18 U.S.C. § 3583(d). (Q) Movant alleges the exclusion of non-citizens from these
6 programs violate the Constitution. (Q) Although Movant does not so state, it appears that A
7 he is subject to deportation as a result of an immigration detainer. Such detainer makes him
8 ineligible for a program that takes a year off his sentence if he successfully completes a
9 prison drug rehabilitation program or for placement in a half-way house. Thus, in effect, the
10 Movant will be incarcerated for eighteen months longer than he might otherwise be if he
1] were an American citizen.
12 II. Summary Dismissal Standard 2
13 A district court shall summarily dismiss a § 2255 application "[i]f it plainly appears
14 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." Rule 4(b), Rules Governing § 2255 Actions. The
15 district court need not hold an evidentiary hearing when the movant’s allegations, viewed
16 against the record, either fail to state a claim for relief or are patently frivolous. Marrow v.
17 United States, 772 F.2d 525, 526 (9th Cir. 1985); @2315;; Baumann v. United States, 692
18 F.2d 565, 571 (9th Cir. 1982) (district court may summarily dismiss without ordering a
19 response where the record conclusively or plainly shows that the movant is not entitled to
20 relief). The Court will dismiss Movant’s motion to vacate without a further opportunity to
21 amend because Movant cannot amend his claims to state a claim for relief.
22 III. Failure to State a Claim
23 Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or
correct its sentence if the sentence was "imposed in violation of the Constitution or laws of
24 the United States, or that the court was without jurisdiction to impose such sentence, or that
25 the sentence was in excess of the maximum authorized by law, or is otherwise subject to
26 collateral attacl<." However, "petitions that challenge the manner, location, or conditions of
27 a sentence’s execution must be brought pursuant to [28 U.S.C.] § 2241 in the custodial
28 court.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Under § 2241, a writ of
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1 habeas corpus may extend to a prisoner who alleges that he is in custody in violation of the
2 Constitution, laws or treaties ofthe United States. Thus, a § 2255 motion is generally proper
3 to attack a conviction and the legality ofthe sentence imposed; in contrast, a petition brought
4 pursuant to § 2241 attacks the execution of the sentence. Porter v. Adams, 244 F.3d 1006,
5 1006-07 (9th Cir. 2001). The Ninth Circuit has countenanced construing § 2255 actions
under § 2241 where jurisdiction is appropriate. See, e.g., Tyler v. United States, 929 F.2d
6 451, 453 (9th Cir. 1_991).
7 Movant seeks relief with respect to the execution of his sentence, specifically, his
8 ineligibility for reduction of his sentence for completion of a substance abuse program or to
9 serye part of his sentence in a half-way . These challenges are appropriately brought under
10 § 2241. The Court has jurisdiction because Movant was imprisoned in the Florence
lj Corrections Center in Florence, Arizona, when he commenced this action.3
12 Construing the motion as seeking relief under § 2241, Movant’s claims- fail. Movant
13 contends that his constitutional rights have been violated because he is ineligible as a non-
14 citizen for a one-year reduction of sentence by participating in a drug treatment program, gg;
18 U.S.C. § 362l(e)(2)(B) (sentence may be reduced by up to one year for successful
15 completion of drug treatment program), or to serve part of his sentence in a halfway house,
16 1.8 U.S.C. § 3624(c) (not longer than six months,.may be served "under conditions that will
17 afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner’s
18 re-entry into the corrnnunity"). In McLean v. Crabtree, 173 F.3d 1176, 1185-86 (9th
19 Cir.1999), the Ninth Circuit Court of Appeals affirmed the denial of an equal protection
20 challenge to the Bureau of Prisons ("BOP") policy excluding prisoners with immigration_
2 1 detainers from eligibility for sentence reduction under a residential substance abuse treatment
22 program. The court held that "excluding prisoners with detainers from participating in
23 commrmity-based treatment programs, and consequently from sentence reduction eligibility,
is at least rationally related to the BOP’s legitimate interest in preventing prisoners from
24 fleeing detainers while participating in corrrrnunity treatment programs." Q at 1186. That
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ii ' 3 Movant’s subsequent transfer to Texas do-es not deprive the Court of jurisdiction
inasmuch as Movant named the warden of the rnstrtutron where he was imprisoned at the
gg time he commenced this proceeding. Se; Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir.
2005), cert. denied, 126 S.Ct. 2287 (2006).
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1 conclusion precludes success on either of Movant’s claims conceming his ineligibility for
2 either a reduction for completion of a drug treatment program or early release to a half—way
3 house. Movant’s inability to qualify for a sentence reduction and placement in a half-way
4 house does not violate his constitutional rights and, in particular, is not violative of his equal
5 protection rights. Accordingly, this action will be dismissed.
6 IT IS ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence Pursuant
to 28 U.S.C. § 2255 (Doc. #185) is denied and the civil action opened in connection with this
7 Motion (No. CV 06-0898-PHX-JAT (GEE)) is dismissed.
8 DATED this 3 lst day of July, 2006.
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12 James A. Teiibor 7
13 United States Districtgjudge
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