United States District Court, E.D. Kentucky, Southern Division
JESU V. GONZALES OLVERA, Petitioner,
S. BUTLER, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
Jesus V. Gonzales Olvera is confined at the Federal
Correctional Institution (“FCI”)-Manchester, in
Manchester, Kentucky. Proceeding without a lawyer, Gonzales
Olvera has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 in which he seeks to
challenge the validity of his underlying federal conviction
and sentence. [Record No. 1].
October 2016, Gonzales Olvera pleaded guilty to being an
alien found in the United States after having been previously
deported in violation of 8 U.S.C. § 1326(a) and (b). He
was sentenced in January 2017 to a term of imprisonment of 37
months, to be followed by a 3-year term of supervised
release. United States v. Gonzalez-Olvera, No.
1:16-cr-10041-JBM-JEH-1 (C.D. Ill. 2016). Gonzales Olvera did
not file a direct appeal regarding his conviction or
sentence. Likewise, he did not move the sentencing court to
vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255.
Olvera alleges in his § 2241 habeas petition a variety
of constitutional violations regarding his underlying
criminal case, including violations of due process rights
under the Fourteenth Amendment, the right to be free from
cruel and unusual punishment under the Eighth Amendment and
rights under the Sixth Amendment. Although his petition is
somewhat disjointed and difficult to follow, the gist of his
claim appears to be that his rights were violated because the
sentencing court failed to consider him for asylum and
parole. [Record No. 1] Gonzalez Olvera also claims that his
counsel was ineffective by not letting him speak at his
sentencing hearing, for failing to request supervised release
or asylum, and for failing to assist with filing his habeas
corpus petition. [Id] Gonzales Olvera asks this
Court to grant an emergency stay of deportation pending
habeas corpus review, to allow him asylum, to review parole
or supervised release and/or to toll the statute of
limitations if the Court determines that his exhaustion of
remedies is not final. [Record No. 1 at 9]
Court conducts an initial review of habeas corpus petitions.
28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). A
petition will be denied “if it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief.” Rule 4 of the Rules Governing
§ 2254 Cases in the United States District Courts
(applicable to § 2241 petitions pursuant to Rule 1(b)).
The Court evaluates Gonzales Olvera’s petition under a
more lenient standard because he is not represented by an
attorney. Erickson v. Pardus, 551 U.S. 89, 94
(2007). At this stage of the proceedings, the Court accepts
the petitioner’s factual allegations as true and
construes all legal claims in his favor. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Olvera’s § 2241 petition will be dismissed, as it
constitutes an impermissible collateral attack on his
conviction and sentence. While a federal prisoner may
challenge the legality of his convictions or sentence in a
motion pursuant to 28 U.S.C. § 2255, he generally may
not do so in a § 2241 petition. See United States v.
Peterman, 249 F.3d 458, 461 (6th Cir. 2001) (explaining
the distinction between a § 2255 motion and a §
2241 petition). A § 2241 petition is usually only a
vehicle for challenges to actions taken by prison officials
that affect the manner in which the prisoner’s sentence
is being carried out, such as computing sentence credits or
determining parole eligibility. See Terrell v. United
States, 546 F.3d 442, 447 (6th Cir. 2009).
certain limited circumstances, “a federal prisoner may
also challenge the validity of his conviction or sentence
under § 2241.” Bess v. Walton, 468 F.
App’x 588, 589 (6th Cir. 2012). However, the Sixth
Circuit has explained that this is only true when the
prisoner is trying to rely on an intervening change in the
law to establish his actual innocence, see Wooten v.
Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012), or
challenge a sentence enhancement. See Hill v.
Masters, 836 F.3d 591, 599-600 (6th Cir. 2016). In this
case, Gonzales Olvera is not relying on an intervening change
in the law to attack his convictions or sentence, nor does he
otherwise meets the requirements set forth in either
Wooten or Hill. Rather, the petitioner is
attempting to litigate substantive claims that he either
could have made on direct appeal or in a habeas petition
filed pursuant to 28 U.S.C. § 2255. Thus, Gonzales
Olvera’s claims are not properly brought in a §
2241 petition filed with this Court.
to the extent that Gonzales Olvera is asking this Court to
stay his deportation and/or grant him asylum, these requests
are not cognizable in a § 2241 petition. As an initial
matter, it is not apparent that the Government has even
initiated removal proceedings against Gonzales Olvera.
However, even if it has, those proceedings must be litigated
in Immigration Court and then on appeal before the Board of
Immigration Appeals and a federal circuit court, not this
Court. Moreover, this Court has no authority to adjudicate
claims for asylum. Rather, Gonzales Olvera may only apply for
asylum by filing an affirmative asylum application with the
United States Citizenship and Immigration Services or by
applying defensively during his removal proceedings in
Immigration Court. See Obtaining Asylum in the
(last visited Dec. 14, 2014). Simply put, this Court has no
authority to grant the relief Gonzales Olvera is seeking.
Olvera has also filed a motion to stay deportation and motion
to grant reports by state department on human rights in
Mexico [Record No. 2] and a motion for name change and
objections on case being transferred to Kentucky from
Illinois. [Record No. 6] However, as Gonzales Olvera’s
§ 2241 petition is denied, these requests for relief
will also be denied. Accordingly, it is hereby
1. Gonzales Olvera’s petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 [Record No. 1] is
2. Gonzales Olvera’s motion to stay deportation and
motion to grant reports by state department on human rights
in Mexico [Record No. 2] and motion for name change and
objections on case being transferred to Kentucky from
Illinois [Record No. 6] are DENIED.
3. This action is DISMISSED and
STRICKEN from the ...