1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RIGOBERTO MELERO AGUIRRE, Case No. 2:21-cv-08125-MWF (AFM)

12 Petitioner, ORDER DISMISSING PETITION 13 FOR LACK OF JURISDICTION v. 14 UNITED STATES OF AMERICA, 15 Respondent. 16 17 18 In 2011, Petitioner pleaded guilty to conspiracy to possess with the intent to 19 distribute more than five kilograms of cocaine in the United States District Court for 20 the Western District of Texas. He was sentenced to 300 months’ imprisonment. See 21 United States v. Aguirre, 3:09-cr-1267-FM-2 (W.D. Tex.) (“Aguirre”), ECF Nos. 22 172, 281, 495, 517. 1 23 On September 27, 2021, Petitioner filed a document entitled “Omnibus 24 Petition,” which the Court construes to be a petition for a writ of habeas corpus 25 26 1 The Court takes judicial notice of the dockets in Petitioner’s underlying criminal case as well as other court proceedings. See Fed. R. Evid. 201; Harris v. County of Orange,

, 27 1132 (9th Cir. 2012) (courts may take judicial notice of undisputed matters of public record, including documents on file in federal or state courts). 28 1 pursuant to

Petitioner is currently incarcerated in the Federal 2 Correctional Institution La Tuna, which is located in Anthony, Texas. (ECF 1.) The 3 petition challenges the legality of Petitioner’s 2011 conviction in, and sentence 4 imposed by, the United States District Court for the Western District of Texas. 5 Although the precise legal and factual basis for Petitioner’s claims are difficult to 6 discern, it appears that Petitioner alleges that his guilty plea is invalid, he received 7 ineffective assistance of counsel, the prosecutor suppressed evidence, the Fifth 8 Circuit Court of Appeal erred in rejecting his claims, and he is actually innocent of a 9 career offender sentence because his state-court conviction does not qualify as a 10 predicate offense. (See ECF 1 at 5-14.) For the following reasons, the petition is 11 summarily dismissed for lack of jurisdiction. 12 DISCUSSION 13 Generally, a federal prisoner who seeks to challenge the legality of his 14 confinement must do by filing a motion pursuant to

. See Allen v. 15 Ives,

(9th Cir. 2020); Marrero v. Ives,

(9th 16 Cir. 2012). The “escape hatch” provision of § 2255(e), however, provides a limited 17 exception: A federal prisoner may proceed by way of a § 2241 petition if the § 2255 18 remedy is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. 19 § 2255(e); see Marrero,

. As the Ninth Circuit has made clear, 20 entitlement to the escape hatch “is not easy to establish,” because it is available only 21 if a prisoner “(1) makes a claim of actual innocence, and (2) has not had an 22 unobstructed procedural shot at presenting that claim.” Shepherd v. Unknown Party, 23 Warden, FCI Tucson,

, 1076 (9th Cir. 2021) (quoting Marrero,

). 25 Because Petitioner challenges his 2011 conviction, he must do so by way of a 26 § 2255 petition unless he can establish entitlement to the escape hatch. The Court 27 2 From the caption and the proof of service, it appears that Petitioner may have intended to file the 28 petition in the United States District Court for the District of Columbia. (See ECF No. 1 at 1, 15.) 1 need not decide whether Petitioner can make the requisite showing because no matter 2 how it is construed, the Court lacks jurisdiction over Petitioner’s present challenge 3 to his 2011 conviction. Only the sentencing court has jurisdiction over a § 2255 4 motion. Hernandez v. Campbell,

(9th Cir. 2000). Thus, if the 5 petition is properly deemed a § 2255 motion, Petitioner must bring it in the United 6 States District Court for the Western District of Texas. 7 A § 2241 petition must be filed in the district with jurisdiction over the 8 petitioner’s custodian. See Rumsfeld v. Padilla,

(2004) (noting 9 “the general rule that for core habeas petitions challenging present physical 10 confinement, jurisdiction lies in only one district: the district of confinement”) (citing 11 Braden v. 30th Judicial Circuit Court,

(1973)). Thus, assuming 12 Petitioner could proceed by way of a § 2241 petition, he must file it in the district 13 having jurisdiction over his custodian. As mentioned above, Petitioner is incarcerated 14 in FCI La Tuna, which is located in El Paso County, in the Western District of Texas. 15 Thus, only the United States District Court for the Western District of Texas has 16 jurisdiction over Petitioner’s custodian, and any § 2241 petition must be filed in that 17 court. 18 The remaining question is whether this action should be transferred to any 19 other court in which the action could have been brought. See

. 20 “Transfer is appropriate under § 1631 if three conditions are met: (1) the transferring 21 court lacks jurisdiction; (2) the transferee court could have exercised jurisdiction at 22 the time the action was filed; and (3) the transfer is in the interest of justice.” Cruz- 23 Aguilera v. I.N.S.,

, 1074 (9th Cir. 2001). Here, the interests of justice 24 would not be served by transferring this action because it is unlikely that Petitioner 25 could meet the requirements to obtain permission to file a successive § 2255 petition 26 in the sentencing court. Petitioner already filed at least three motions to vacate his 27 sentence pursuant to

in the sentencing court. Petitioner’s first 28 motion, filed in 2015, was denied as time barred. Aguirre, ECF Nos. 472, 477-478. 1 || Two subsequent § 2255 motions were dismissed as successive. Aguirre, ECF Nos. 2 |} 516-518, 542, 544-545. It is also unlikely that Petitioner can make the requisite 3 || showing entitling him to proceed by way ofa § 2241 petition. Petitioner already has 4 }| filed a § 2241 petition in the United States District Court for the Western District of 5 || Texas. See Melero-Aguirre v. Bergami,

, at *1 (W.D. Tex. Feb. 24, 6 || 2020).3 That court concluded that Petitioner failed to fall within the savings clause of 7 || § 2255 and dismissed the petition for lack of jurisdiction. Melero-Aguirre,

|| 905196, at *4. Accordingly, transfer here is inappropriate. See Clark v. Busey, 959 9 || F.2d 808, 812 (9th Cir. 1992). 10 ORDER 11 IT THEREFORE IS ORDERED that this action be dismissed without 12 || prejudice for lack jurisdiction. 13 14 || DATED: November 29, 2021 15 |

16 MICHAEL W. FI RALD 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 2° 3 The petition filed in the Western District of Texas included one of the same allegations as is 26 || included in the present action, namely a claim that Petitioner’s state-court conviction no longer qualified as a predicate offense, so he was actually innocent of a career offender sentence 27 || enhancement. Melero-Aguirre,

, at *2. In rejecting that claim, the Court explained that Petitioner “was not sentenced as a career offender; he was sentenced based on the quantity of 28 |! cocaine he distributed.” Melero-Aguirre,

, at *4.