Arturo Favela-Gomez v. B. Birkholz ( 2024 )

1 2 3 4 5 6 1 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 |} ARTURO FAVELA-GOMEZ, Case No. 2:23-cv-01773-MEMEF (KES) Me Petitioner, ORDER ACCEPTING FINDINGS AND ny SMEATON orga 14 | B. BIRKHOLZ, Warden, ts Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, the 19 || records on file, and the Report and Recommendation (“Report”) of the United 20 || States Magistrate Judge. (Dkt. No. 22.) Further, the Court has engaged in a de 21 || novo review of those portions of the Report to which objections have been made. 22 The Report found that Petitioner is ineligible for earned time credits 23 |} (“ETCs”) under the First Step Act because he was convicted of conspiracy to 24 || distribute and distribution of methamphetamine with an enhancement for his role as 25 || an organizer, leader, manager, or supervisor of others in the offense. (Dkt. No. 22 26 || at 8.) Petitioner’s Objections to the Report (Dkt. No. 24) do not warrant any 27 || change to the Magistrate Judge’s findings or recommendation, for the following 28 || reasons. 1 Petitioner objects that he is a non-English speaking individual and that his 2 || counsel was ineffective for failing to object to the enhancement for being an 3 || organizer or leader in the drug offense. (Dkt. No. 24 at 2.) The record shows, 4 || however, that Petitioner was assisted with an interpreter at his sentencing hearing. 5 || (Dkt. No. 14-3 at 4.) Moreover, a claim of ineffective assistance of counsel is not 6 || properly brought in this proceeding under 28 U.S.C. § 2241. See United States v. 7 || Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (“The customary procedure for 8 || challenging the effectiveness of defense counsel in a federal criminal trial is by 9 || collateral attack on the conviction under 28 U.S.C. § 2255.”). 10 Petitioner objects that the sentencing court did not actually find that he was 11 || an organizer or leader in the drug offense. (Dkt. No. 24 at 2.) To the contrary, the 12 || record shows that the sentencing court applied a four-level enhancement for 13 || Petitioner’s role as a leader or organizer. (Dkt. No. 14-3 at 8-9, 23-24, 30.) 14 Petitioner objects that he was not rendered ineligible for ETCs due to his 15 || immigration status and, specifically, he denies that he subject to a final order of 16 || removal. (Dkt. No. 24 at 3-4.) The Report, however, found it unnecessary to reach 17 || this issue because the record was sufficient to establish that Petitioner was 18 || ineligible on the alternate ground of the nature of his conviction and sentence. 19 || (Dkt. No. 22 at 6.) 20 IT IS ORDERED that (1) the Report and Recommendation of the Magistrate 21 || Judge is accepted and adopted; (2) the Petition is denied on the merits; and (3) 22 || Respondent’s motion to dismiss (Dkt. No. 9) is denied as moot. 23 24 || DATED: March 22, 2024 26 MAGME PWUSI-MENSAH ERIMPONG 28