United States v. Jerry Aubrey ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-55463
Plaintiff-Appellee, D.C. Nos. 8:18-cv-01830-JVS
8:13-cr-00167-JVS-1
v.
JERRY L. AUBREY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted December 10, 2020**
Pasadena, California
Before: GOULD and R. NELSON, Circuit Judges, and COGAN,*** District Judge.
Defendant-Appellant Jeffrey Aubrey appeals the district court’s judgment
dismissing his motion, which was styled as a habeas petition under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
§ 2255, seeking presentencing federal custody credit under U.S.S.G. § 5G1.3 for
the period of his presentence detention credited toward his remaining state
sentence. The district court concluded it lacked jurisdiction. We have jurisdiction
pursuant to 28 U.S.C. § 2253 and we affirm.
“We review a district court’s denial of a § 2255 motion de novo.” United
States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014) (citation omitted). “The district
court’s assumption of jurisdiction, the validity of waiver of appellate rights, and
equitable tolling decisions are all likewise reviewed de novo.” Id. (citations
omitted).
Because Aubrey is challenging the execution of his sentence, not its legality
or propriety, the district court properly determined Aubrey’s § 2255 petition
actually challenges the manner, location, or conditions of his imprisonment and
thereby properly construed it as a petition for a writ of habeas corpus under 28
U.S.C. § 2241. See Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008); United
States v. Giddings, 740 F.2d 770, 771 (9th Cir. 1984). A § 2241 petition must be
filed in the district in which the petitioner is confined or in the district court in the
district where the State court that convicted and sentenced the petitioner is located.
28 U.S.C. § 2241(d); Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004); Muth v.
Fondren, 676 F.3d 815, 818 (9th Cir. 2012).
At the time he filed the petition, Aubrey was imprisoned in the Western
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District of Texas, and had been originally convicted and sentenced in a Florida
state court, but he filed this petition the Central District of California. Given that
Aubrey’s petition was properly construed as a § 2241 petition and that Aubrey was
confined in the Western District of Texas, the district court correctly concluded it
lacked jurisdiction over Aubrey’s petition and dismissed. Muth, 676 F.3d at 818.
AFFIRMED.
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