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Arreola-Lopez v. United States

November 26, 2008

MELECIO ARREOLA-LOPEZ, PETITIONER/DEFENDANT,
v.
UNITED STATES OF AMERICA, RESPONDENT/PLAINTIFF.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

This matter is before the Court for preliminary review of Petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). See Rule 4(b) of the Rules Governing § 2255 Proceedings in the United States District Courts.

Background

On June 8, 2006, Petitioner was charged with conspiracy to posses with intent to distribute cocaine in violation of 28 U.S.C. §§ 841(a)(1) and 846. See United States v. Arreola-Lopez, No. 3:06-cr-30077-MJR (S.D. Ill.). On January 19, 2007, Petitioner pleaded guilty as charged in the indictment. On April 20, 2007, this Court imposed a sentence of 70 months incarceration, 5 years supervised release, a special assessment of $100.00 and a fine of $500.00 (Doc. 105). Petitioner did not appeal his conviction or sentence.

At the time Petitioner committed the above offense, he was on supervised release for illegally entering the United States in violation of 8 U.S.C. § 1325(a). See United States v. Arreola-Lopez, No. 3:03-cr-30121-DRH (S.D. Ill.). Consequently, Petitioner was charged with violating the terms of his supervised release. Petitioner admitted the violations and, on May 4, 2007, the Honorable David R. Herndon, Chief Judge, sentenced Petitioner to 12 months incarceration "to run consecutive to 3:06CR30077-01 MJR."

Petitioner's Motion to Vacate

Petitioner's § 2255 motion enumerates two grounds for relief. For ground one, Petitioner claims that this Court intended to impose "a term of imprisonment of no more than five (5) years" with respect to his conviction in Case No. 3:06-cr-30077-MJR, not the 70 month term of imprisonment actually imposed.

For ground two, Petitioner claims that Chief Judge Herndon "failed to consider [his] discretionary power" to make Petitioner's sentence in Case No. 3:03-cr-30121-DRH run concurrent to the sentence imposed by this Court in Case No. 3:06-cr-30077-MJR.

In addition to grounds one and ground two , it appears the Petitioner is also challenging the manner in which the Federal Bureau of Prisons ("BOP") is executing his two sentences.

Discussion

At the outset, this Court notes that Petitioner is attacking two separate judgments in this § 2255 action: (1) this Court's judgment in Case No. 3:06-cr-30077-MJR; and (2) Chief Judge Herndon's judgment in Case No. 3:03-cr-30121-DRH. This is not permitted. Rule 2(d) of the Federal Rules Governing § 2255 Proceedings for the United States District Courts (hereinafter "§ 2255 Rules") states: "[a] moving party who seeks relief from more than one judgment must file a separate motion covering each judgment." Consequently, ground two of the instant motion will be severed from this action and a new civil case will be opened for ground two.*fn1

Additionally, beyond challenging the judgments rendered by this Court and by Chief Judge Herndon, Petitioner appears to challenge the manner in which his sentences are being executed by the BOP. Challenges to the manner in which a valid sentence is being executed must be asserted in a § 2241 petition, not a § 2255 action. Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998); Atehortua v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Petitions pursuant to § 2241 challenging the manner in which a sentence is being executed should be filed in the judicial district where Petitioner is incarcerated and his immediate custodian can be found. 28 U.S.C. § 2241(a). Neither Petitioner nor his immediate custodian are located in this judicial district. Consequently, the Court will dismiss Petitioner's claim that the manner in which his sentences are being executed by the BOP violates his rights.

Finally, with respect to ground one, relief under § 2255 is "reserved for extraordinary situations." Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993); Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). A criminal defendant may attack the validity of his sentence under Section 2255 only if the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.

28 U.S.C. ยง 2255. However, a Section 2255 motion "is neither a recapitulation of nor a substitute for a direct appeal." Olmstead v. United States, 55 ...


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