BACKGROUND

18 Petitioner Travis Chelberg, who is proceeding pro se, filed a Petition for Writ 19 of Habeas Corpus under 28 U.S.C. § 2241. (Civ. Case, ECF No. 1.) 1 He is 20 currently incarcerated at the Metropolitan Correctional Center in San Diego, 21 California. (Id.) On December 3, 2010, Mr. Chelberg pled guilty to one count of 22 assault with the intent to commit a felony (witness tampering), in violation of 18 23 U.S.C. §§ 113(a)(2) and 7(3), and one count of felon in possession of a firearm, in 24 violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Crim. Case, ECF Nos. 127, 25 129, 130.) Mr. Chelberg’s plea agreement established that he qualified for a career 26

27 28 1 The petition was initially dismissed for failure to pay the filing fee. (ECF No. 2.) Mr. Chelberg has since paid the 1 offender enhancement under U.S.S.G. § 4B1.1. (Crim Case, ECF No. 129, at 7– 2 8.) As part of the plea agreement, Mr. Chelberg waived any right to appeal or to 3 collaterally attack his conviction or sentence. (Id.) On February 24, 2012, the 4 Court sentenced Mr. Chelberg to a term of 168 months in accordance with the joint 5 recommendation of the parties after he was classified as a career offender. (Crim. 6 Case, ECF Nos. 169, 173.) He did not directly appeal the conviction or sentence. 7 On February 25, 2013, Mr. Chelberg filed a motion for post-conviction relief 8 under 28 U.S.C. § 2255. (Crim. Case, ECF No. 181.) Mr. Chelberg argued that 9 one of his predicate prior felony convictions could not properly be counted when 10 applying the career offender sentencing enhancement and therefore argued that 11 the attorney who negotiated the plea agreement and represented him at the 12 sentencing hearing provided ineffective assistance of counsel by advising him to 13 admit career offender status. (Id. at 4.) This Court denied the § 2255 motion and 14 granted a certificate of appealability as to that issue. (Crim. Case, ECF No. 197.) 15 The Ninth Circuit affirmed. (Crim. Case, ECF No. 230.) 16 On April 22, 2019, Mr. Chelberg filed a petition for post-conviction relief under 17 28 U.S.C. § 2241 again arguing that the career offender enhancement was 18 improperly applied at sentencing. (Case No. 3:19-cv-0748-BTM, ECF No. 1.) He 19 also argued that his conviction under 18 U.S.C. § 113(a)(2) does not qualify as a 20 “crime of violence” for purposes of U.S.S.G. § 4B1.1 in light of the Ninth Circuit’s 21 decision in United States v. Dominguez-Maroyoqui, 748 F.3d 918 (9th Cir. 2014). 22 (Id. at 4–5.) The Government filed a motion to dismiss the petition for lack of 23 jurisdiction. (Case No. 3:19-cv-0748-BTM, ECF No. 15.) Mr. Chelberg 24 subsequently filed numerous requests to amend his petition, supplemental briefing 25 in support of his petition, and responses in opposition to the Government’s motion 26 to dismiss. (Case No. 3:19-cv-0748-BTM, ECF No. 18, 20, 22, 24, 26; Crim. Case, 27 ECF No. 248.) He raised additional challenges to the validity of his detention, 28 specifically that the Court had improperly concluded that Mr. Chelberg had at least 1 two predicate prior felony convictions of either a crime of violence or a controlled 2 substance offense for the purposes of U.S.S.G. § 4B1.1 because: (i) one such 3 conviction was insufficiently serious and/or too old to be considered; and (ii) the 4 Court improperly relied upon either insufficient or altered documents in determining 5 that Mr. Chelberg had in fact been convicted of such prior felonies. (Case No. 6 3:19-cv-0748-BTM, ECF No. 22, at 3; Crim. Case, ECF No. 248, at 2.) 7 This Court granted the Government’s motion and dismissed Mr. Chelberg’s 8 § 2241 petition because his arguments consisted of purely legal issues concerning 9 his sentencing that were not appropriately heard under § 2241 or qualified for relief 10 under § 2255’s “escape hatch” criteria. (Case No. 3:19-cv-0748-BTM, ECF No. 11 30, at 5–6; Crim. Case, ECF No. 259.) 12 On September 24, 2020, Mr. Chelberg filed another § 2241 petition again 13 claiming that that the career offender enhancement was improperly applied at 14 sentencing. (Civil Case, ECF No. 1 (“Pet.”), at 4–5). Mr. Chelberg also moved for 15 appointment of counsel (Civil Case, ECF No. 5), and requested a bail hearing 16 pending adjudication of the 18 U.S.C. § 3582 petition in his criminal case. (Civil 17 Case, ECF No. 8). 18 19 Discussion 20 1. Standard of Review 21 This court may entertain a petition for writ of habeas corpus from a person 22 “in custody in violation of the Constitution or laws or treaties of the United States.” 23 28 U.S.C. § 2241(c)(3). The court shall “award the writ or issue an order directing 24 the respondent to show cause why the writ should not be granted, unless it appears 25 from the application that the applicant or person detained is not entitled thereto.” 26 28 U.S.C. § 2243. 27 A federal prisoner “claiming the right to be released upon the ground that the 28 sentence was imposed in violation of the Constitution or laws of the United States, 1 or that the court was without jurisdiction to impose such sentence, or that the 2 sentence was in excess of the maximum authorized by law, or is otherwise subject 3 to collateral attack, may move the court which imposed the sentence to vacate, set 4 aside or correct the sentence.” 28 U.S.C. § 2255. Summary dismissal is 5 appropriate only where the allegations in the petition are vague or conclusory, 6 palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 7 F.2d 490, 491 (9th Cir.1990). 8 9 2. Analysis 10 Mr. Chelberg’s petition challenges this Court’s application of the sentencing 11 guidelines. (Pet., at 2.) Specifically, he is asking the Court to reconsider his career 12 offender enhancement. (Id. at 4–5.) 13 Section 2241 allows “the Supreme Court, any justice thereof, the district 14 courts and any circuit judge” to grant writs of habeas corpus “within their respective 15 jurisdictions.” Review of the manner of execution of a federal sentence is properly 16 brought as a petition under 28 U.S.C. § 2241. See United States v. Giddings, 740 17 F.2d 770, 772 (9th Cir. 1984). “The general rule is that a motion under 28 U.S.C. 18 § 2255 is the exclusive means by which a federal prisoner may test the legality of 19 his detention, and that restrictions on the availability of a § 2255 motion cannot be 20 avoided through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464 21 F.3d 895, 897 (9th Cir. 2006) (citations omitted). 22 Because Mr. Chelberg is attacking the legality of his sentence rather than 23 the execution, a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 is the 24 proper vehicle. See Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991) 25 (challenge to sentence following probation or parole revocation must be brought in 26 sentencing court via § 2255 motion); Tripati v. Henman, 843 F.2d 1160, 1162 (9th 27 Cir.1988) (challenge to legality of conviction must be brought in sentencing court 28 via § 2255 motion); see also United States v. Flores, 616 F.2d 840, 842 (5th 1 || Cir.1980) (where challenge is to alleged errors at or prior to sentencing remedy is 2 ||§ 2255 motion, not § 2241 writ). 3 As the Court previously explained (Case No. 3:19-cv-0748-BTM, ECF No. A at 4-6; Crim. Case, ECF No. 259), a new § 2255 petition cannot be filed in this 5 ||Court unless and until the petitioner first obtains authorization from the United 6 States Court of Appeals for the Ninth Circuit. 28 U.S.C. §§ 2244(a), 2255; see 7 || United States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011). Since this is 8 ||not Mr. Chelberg’s first § 2255 petition and he has not obtained authorization from 9 || the Ninth Circuit, the Court has no jurisdiction to hear his § 2255 motion, which he 10 as a § 2241 petition, challenging his sentence. See Moore v. Reno, 185 F.3d 11 ||1054, 1055 (9th Cir. 1999) (A “habeas petitioner may not avoid the limitations 12 ||imposed on successive petitions by styling his petition as one pursuant to 28 13 |]U.S.C. § 2241”). 14 Accordingly, the petition is DISMISSED. All pending motions are DENIED. 15 16 || IT IS SO ORDERED. 17 ||Dated: October 15, 2020 48 Ls Fil 19 Hono ble Barry Ted Moskowitz United States District Judge 20 21 22 23 24 25 26 27 28