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Hernandez-Ortega v. Warden

United States District Court, Fifth Circuit

November 26, 2013

LUIS HERNANDEZ-ORTEGA,
v.
WARDEN

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

ANDREW W. AUSTIN, Magistrate Judge.

Before the Court is Luis Hernandez-Ortega's Motoin to Set Aside, or Correct Sentence by a Person in Federal Custody, filed on August 26, 2013 (Civil Dkt. # 1). The undersigned magistrate judge submits this Report and Recommendation pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges, as amended.

I. GENERAL BACKGROUND

Petitioner Luis Hernandez-Ortega ("Ortega") is an alien and citizen of Mexico. On February 20, 2008, Ortega was removed from the United States through Hildalgo, Texas, pursuant to a reinstated order of an immigration judge. On October 1, 2009, Ortega was found by ICE agents in Travis County Jail following his arrest by local law enforcement. On November 17, 2009, Ortega was indicted for illegal reentry of a removed alien, in violation of 8 U.S.C. § 1326. On December 2, 2009, Ortega pled guilty to the sole-count of the Indictment. On February 26, 2010, the District Court sentenced Ortega to 18 months imprisonment, a three-year term of supervised release, and a special assessment of $100. See Judgment in A-09-CR-580 JRN. Ortega did not file a direct appeal of this conviction and sentence.

On February 10, 2011, Ortega was arrested in Kenedy County, Texas, for once again illegally reentering the United States without having obtained consent to reapply for admission. After pleading guilty to a violation of 8 U.S.C. § 1326, the District Court in the Corpus Christi Division of the Southern District of Texas sentenced Ortega to 27 months imprisonment, a three-year term of supervised release and a $100 special assessment. See 2:11-CR-257(1). Ortega appealed his sentence to the Fifth Circuit which dismissed his appeal as frivolous. See United States v. Luis Hernandez-Ortega, No. 11-40769 (5th Cir. June. 19, 2012). Ortega is presently incarcerated in the Reeves County Detention Center in Pecos, Texas.

On August 26, 2013, Ortega filed the instant Petition for Writ of Habeas Corpus, pursuant to § 2241. In the Petition, Ortega argues that his sentence violates the Ex Post Facto clause of the United States Constitution.[1] Because Ortega is attacking errors that occurred at or prior to his sentencing, his claims are outside the proper scope of a § 2241 petition. "A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 are distinct mechanisms for seeking post-conviction relief." Pack v. Yusuff, 218 F.3d 448, 451(5th Cir. 2000). A§ 2241 petition attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration, and must be filed in the same district where the prisoner is incarcerated. A § 2255 motion, by contrast, "provides the primary means of collateral attack on a federal sentence." Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Relief under § 2255 is warranted for errors cognizable on collateral review that "occurred at or prior to sentencing, " and must be filed in the sentencing court. Id. at 1113.

The Fifth Circuit has observed that "[a] petition for a writ of habeas corpus pursuant to [section] 2241 is not a substitute for a motion under [section] 2255." McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). Thus, a § 2241 petition that seeks to challenge the validity of a federal sentence must either be dismissed or construed as a § 2255 motion. Pack, 218 F.3d at 452. Pursuant to Castro v. United States, 540 U.S. 375, 383 (2003), the District Court warned Ortega that it intended to recharacterize his § 2241 Petition as a § 2255 Motion to provide Ortega with "the opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has." See September 17, 2013 Order. Ortega did not respond to the District Court's Order. Accordingly, Ortega's § 2241 Petition is now recharacterized as a § 2255 Motion and the Court will now address the Motion.

II. ANALYSIS

In his § 2255 Petition, Ortega argues that his sentence violates the Ex Post Facto clause of the United States Constitution. The Court is unable to address the merits of Ortega's Motion, however, because it is time-barred. Section 2255, provides as follows:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims could have been discovered through the ...

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