1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SERGIO LEYVA, Case No.: 20-CV-81 JLS (AHG)

12 Petitioner,

ORDER (1) DISMISSING PETITION

13 v. FOR WRIT OF HABEAS CORPUS

PURSUANT TO 28 U.S.C. § 2241,

14 DIANE BARRIOS, Field Office Director;

AND (2) DIRECTING CLERK OF

U.S. DEPARTMENT OF HOMELAND

15 COURT TO OPEN NEW CASE

SECURITY; U.S. IMMIGRATION AND

UNDER 28 U.S.C. § 2255

16 CUSTOMS ENFORCEMENT,

17 Respondents. (ECF No. 1) 18 19 Presently before the Court is Petitioner Sergio Leyva’s Petition for a Writ of Habeas 20 Corpus Under 28 U.S.C. § 2241 (“Pet.,” ECF No. 1). Petitioner is challenging the 21 “[v]alidity of [a guilty] plea based on ineffective assistance of counsel” in United States v. 22 Leyva, No. 15-CR-3033 JLS-2 (S.D. Cal. filed Dec. 8, 2015), id. at 3, specifically counsel’s 23 “failure to advise of immigration consequences of plea.” Id. at 7. Although Petitioner 24 claims that he is not “challenging the validity of [his] conviction or sentence as imposed” 25 pursuant to 28 U.S.C. § 2255, id. at 5, Petitioner ultimately requests that the Court “[v]acate 26 petitioner’s conviction.” Id. at 9. 27 Section 2241 applies where a prisoner “is in custody in violation of the Constitution 28 or laws and treaties of the United States.” 28 U.S.C. § 2241(c)(3). Section 2255, by 1 ||contrast, applies where “[a] prisoner in custody under sentence of a court established by 2 || Act of Congress [is] claiming the right to be released upon the ground that the sentence 3 || was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. 4 2255(a). In other words, a petition under Section 2241 challenges the manner of the 5 ||execution of a sentence, whereas Section 2255 challenges the propriety of the sentence 6 |/itself. See Doganiere v. United States, 914 F.2d 165, 169 (9th Cir. 1990). 7 Because Petitioner is challenging his sentence, rather than the conditions of his 8 ||confinement, it appears that his Petition is appropriately brought pursuant to 28 U.S.C. 9 2255, rather than 28 U.S.C. § 2241. See Kreuzhage v. United States, 165 F.3d 916 (9th 10 || Cir. 1998) (dismissing § 2241 petition without prejudice to filing of a motion pursuant to 11 || § 2255 where the petitioner’s “quarrel is with the sentencing court and its imposition of the 12 ||amended sentence’) (unpublished); see also Stephens v. Herrera, 464 F.3d 895, 897 (9th 13 2006) (“[R]estrictions on the availability of a § 2255 motion cannot be avoided 14 |/through a petition under 28 U.S.C. § 2241.”). The Court therefore DISMISSES the 15 || Petition pursuant to 28 U.S.C. § 2241 as improperly pled and DIRECTS the Clerk of the 16 || Court to open a new case under 28 U.S.C. § 2255. 17 IT IS SO ORDERED. 18 19 ||Dated: January 14, 2020 (een 0 on. Janis L. Sammartino United States District Judge 21 22 23 24 25 26 27 28