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8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

11 RHONDA ANN FLEMING Case No. 23-cv-00017 NC (PR)

12 Petitioner, ORDER OF TRANSFER

13 v.

14 FCI- DUBLIN WARDEN, 15 Respondent. 16 17 This federal habeas action, in which petitioner is challenging “the validity of [her] 18 conviction or sentence,” Dkt. No. 1 at 2, is TRANSFERRED to the United States District 19 Court for the Southern District of Texas, as that is the district of conviction. See 28 U.S.C. 20 §§ 1404(a), 2241(d); Habeas L.R. 2254-3(b). 21 Typically,

is used to review the execution of a federal sentence, 22 rather than the sentence itself. See, e.g., United States v. Giddings,

(9th Cir. 23 1984) (presentence time credit claim). Under limited circumstances, a federal prisoner may 24 use

to collaterally attack a conviction or sentence. See 28 U.S.C. 25 § 2255(e) (known as the “escape hatch” provision). However, this “escape hatch” only 26 1 applies when the prisoner “(1) makes a claim of actual innocence, and (2) has not had an 2 unobstructed procedural shot at presenting that claim.” Marrero v. Ives,

, 3 1192 (9th Cir. 2012). 4 Here, petitioner states on the face of the petition that she is challenging “[t]he 5 validity of [her] conviction or sentence,” rather than the execution thereof. See Pet. at 2. 6 As relief, she asks for her conviction to be vacated. See id. at 7. However, petitioner 7 argues not that she needs to proceed under the “escape hatch,” but rather that her 8 conviction is unconstitutional based on an intervening change in the law. See id. at 2, 5. 9 Accordingly, the instant petition properly should be filed before the United States District 10 Court for the Southern District of Texas, and/or the United States Court of Appeals for 11 the Fifth Circuit. See

(h)(2) (providing that a petitioner may seek 12 permission from “the appropriate court of appeals” to file “[a] second or successive 13 motion” for relief from conviction, based on “a new rule of constitutional law, made 14 retroactive to cases on collateral review by the Supreme Court, that was previously 15 unavailable”). 16 The Clerk is directed to transfer this matter forthwith. 17 IT IS SO ORDERED. 18 DATED: February 3, 2023 19 NATHANAEL M. COUSINS 20 United States Magistrate Judge 21 22 23 24 25 26