1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Case Nos. 18-cr-1405-BAS-2; 21-cv-01657-BAS 12 Plaintiff,

13 v. ORDER DENYING WITHOUT

PREJUDICE DEFENDANT’S

14 STEPHEN TONEY, SR.,

MOTION TO VACATE SENTENCE

15 Defendant. UNDER SECTION 2255 (ECF No. 543) 16 17

18 On September 24, 2020, the Court sentenced Defendant Stephen Toney, Sr. to 19 seventy-four months of imprisonment for conspiracy to possess with an intent to distribute 20 a controlled substance under 21 U.S.C. §§ 841(a)(1), 846. (ECF No. 496.)1 In sentencing 21 Mr. Toney, the Court recommended that he “be placed in the [Bureau of Prisons (‘BOP’)] 22 residential drug and alcohol program (‘RDAP’).” (Id.) 23 On September 21, 2021, Mr. Toney filed a Motion to Vacate, Set Aside, or Correct 24 Sentence under 28 U.S.C. § 2255. (ECF No. 543.) Mr. Toney argues the BOP is 25 discriminating against him because it determined he is not eligible to enroll in the BOP’s 26 27 1 The Court cites to the Electronic Case Filing (“ECF”) numbers in Defendant’s criminal case, 28 1 |}RDAP. (/d. at 4.) Further, he argues successful completion of the program would take 2 || twelve months off of his sentence. (/d.) 3 “Generally, motions to contest the legality of a sentence must be filed under [28 4 ||U.S.C.] § 2255 in the sentencing court, while petitions that challenge the manner, location, 5 || or conditions of a sentence’s execution must be brought pursuant to [28 U.S.C.] § 2241 in 6 || the custodial court.” Hernandez v. Campbell, 204 F.3d 861, 864—65 (9th Cir. 2000). 7 Upon review, Mr. Toney’s claim is not properly raised in a Section 2255 Motion in 8 || this Court. His claim challenges the manner in which the BOP is carrying out the execution 9 ||of his sentence. This type of challenge is brought under 28 U.S.C. § 2241, not § 2255. See 10 || Hernandez, 204 F.3d at 864-65; see also Murphy v. Hood, 276 F.3d 475, 476 (9th Cir. 11 ||2001); Drake v. United States, No. CIV.A. 2:07-CV-00420, 2007 WL 2570194, at *2 12 ||(S.D.W. Va. Aug. 31, 2007) (dismissing Section 2255 motion without prejudice because 13 defendant’s RDAP discrimination claim did not challenge the legality of the 14 || defendant’s sentence). 15 As mentioned, a challenge under § 2241 must be brought in the custodial court—the 16 || district where Mr. Toney is in custody. Mr. Toney is housed at the BOP’s facility in 17 || Lompoc, CA, which is in the Central District of California. Therefore, if Mr. Toney wishes 18 || to challenge the execution of his sentence under § 2241, he must file that challenge in the 19 ||U.S. District Court for the Central District of California. 20 Accordingly, the Court DENIES Defendant’s Section 2255 Motion without 21 ||prejudice. The Clerk shall dismiss and close the civil action in No. 21-cv-01657-BAS. 22 || Finally, because jurists would not find it debatable whether the Court’s determination that 23 Toney cannot bring this challenge under Section 2255 is correct, the Court declines to 24 issue a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B); Slack v. McDaniel, 529 25 473, 484 (2000). 26 IT IS SO ORDERED. 27 28 || DATED: October 14, 2021 ( ill A (Hyshan 6 How. Cynthia Bashant □□□ United States District Judge