1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 FRANCISCO MELGAR-CABRERA, Case No. 5:23-cv-02362-JWH (BFM) 11 Petitioner, ORDER ACCEPTING FINDINGS

AND RECOMMENDATIONS OF

12 v. UNITED STATES MAGISTRATE

JUDGE

13 WARDEN B. LAMMER, 14 Respondent. 15

16 17 18 19 20 21 22 23 24 25 26 27 28 1 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records 2 on file, and the Report and Recommendation (“Report”) of the United States 3 Magistrate Judge. Further, the Court has engaged in a de novo review of those 4 portions of the Report to which objections have been made. 5 The Report recommends the dismissal of this action without prejudice 6 because the Petition, filed under 28 U.S.C. § 2241, does not challenge the execution 7 of a sentence or qualify for the “escape hatch” of 28 U.S.C. § 2255(e). (ECF 8 No. 18.) For the following reasons, Petitioner’s objections to the Report (ECF 9 No. 20) do not warrant a change to the Magistrate Judge’s findings or 10 recommendation. 11 Petitioner objects that “he is under the protection of the extradition treaty” 12 with El Salvador, which “extends to the execution of a sentence” under 28 U.S.C. 13 § 2241. (ECF No. 20 at 2.) To the contrary, as the Report explained, Petitioner’s 14 claims do not pertain to the execution of his sentence, but instead relate to the 15 lawfulness of his judgment of conviction and imposed sentence, which Petitioner 16 must challenge on direct appeal or in a motion under 28 U.S.C. § 2255. (ECF 17 No. 18 at 7-9.) 18 Petitioner objects that he is “serving a sentence for a crime which was not 19 authorized in the extradition order.” (ECF No. 20 at 3.) To the contrary, as the 20 Report explained, the charges that the Salvadoran court had excluded as part of the 21 extradition proceeding were ultimately dismissed by the sentencing court. (ECF 22 No. 18 at 3.) See also United States v. Melgar-Cabrera, Case 23 No. 1:09-cr-2962-WJ-KK, ECF No. 320 (D.N.M. Mar. 12, 2015); United States v. 24 Melgar-Cabrera, 892 F.3d 1053, 1057 (10th Cir. 2018). 25 Petitioner objects that, even if he could have raised his extradition-based 26 challenges on direct appeal or a motion under 28 U.S.C. § 2255, he may still raise 27 them under 28 U.S.C. § 2241 because the Treaty is being violated “on a daily basis” 28 while he is serving his sentence. (ECF No. 20 at 4.) To the contrary, that argument 1 does not demonstrate a proper challenge to the execution of a sentence under 28 2 U.S.C. § 2241. Because Petitioner is challenging the validity of the sentence that 3 was imposed, 28 U.S.C. § 2241 is not the proper vehicle for that challenge. See 4 Bradshaw v. Story, 86 F.3d 164, 167 (10th Cir. 1996) (habeas petition under § 2241 5 is not the appropriate vehicle to challenge a sentence “where alleged errors 6 occurred at or prior to sentencing”). 7 Petitioner objects that his remedy under 28 U.S.C. § 2255 was inadequate or 8 ineffective because it does not permit appeals of non-constitutional claims, such as 9 his extradition-based claims. (ECF No. 20 at 4-5.) To the contrary, as the Report 10 explained, “[t]he statutory limitation on the kinds of claims that can be appealed 11 does not render the remedy provided in § 2255 inadequate to test the legality of 12 other claims, and does not mean that Petitioner can bring his claims pursuant to 13 § 2241.” (ECF No. 18 at 7.) See also United States v. Tinajero-Porras, 697 14 F. App’x 609, 611 (10th Cir. 2017) (limits on a federal prisoner’s ability to raise 15 non-constitutional claims in a § 2255 proceeding do not establish that the remedy is 16 inadequate or ineffective) (citing Carvalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 17 1999) (“§ 2255’s substantive and procedural barriers by themselves do not establish 18 that § 2255 is inadequate or ineffective.”)). 19 Petitioner objects that he has provided “scenarios” in which a remedy under 20 28 U.S.C. § 2255 would be inadequate or ineffective. (ECF No. 20 at 5-6.) One 21 such scenario would be if Petitioner “escapes today and then is re-extradited.” (Id. 22 at 6.) As the Report explained, however, hypothetical scenarios do not demonstrate 23 that the remedy in this case was inadequate or ineffective to test the legality of 24 Petitioner’s detention. (ECF No. 18 at 7.) 25 For those reasons, it is hereby ORDERED as follows: 26 1. Petitioner’s objections are OVERRULED. 27 2. The Report and Recommendation of the Magistrate Judge is 28 ACCEPTED and ADOPTED. 1 3. Respondent’s Motion to Dismiss the Petition is GRANTED. 2 4. Respondent’s Motion to Transfer is DENIED as moot. 3 5. Judgment shall be entered DISMISSING this action without 4 || prejudice. 5 IT IS SO ORDERED. 6 7 || DATED: July 10, 2024 . OO MX, “HLL 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28