The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
Pro se petitioner, Edith Garcia ("Garcia"), is presently before this Court seeking the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Garcia claims that he is entitled to habeas corpus relief pursuant to 28 U.S.C. § 2241 because, post-sentencing, the government denied his due process rights by failing to move the sentencing court for a reduction in sentence under Fed. R. Crim. P. Rule 35(b). As the petition is improperly brought before this Court under 28 U.S.C. § 2241, we will transfer it to the sentencing court for consideration under 28 U.S.C. § 2255 without examining the merits of petitioner's claim for habeas corpus relief.
On June 30, 1994, petitioner was indicted for possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841 and conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. In October of that year, Garcia pled guilty to the conspiracy charge of the indictment pursuant to a plea agreement. In the plea agreement, he waived the right to title to four vehicles he admitted were bought with drug proceeds, in exchange for a downward adjustment of three levels in his sentence and the dismissal of the remainder of the charges against him. Garcia received 135 months in jail and began serving his sentence at FCI Allenwood.
While at FCI Allenwood, Garcia retained counsel, David Ash. In early 1995, Ash contacted Assistant United States Attorney John H. Purcell, Jr. and inquired whether the government would be interested in Garcia's cooperation regarding a drug conspiracy in exchange for the possibility that the government might be persuaded to file a Rule 35(b) motion.
On March 31, 1995, Ash, Purcell, Garcia and an agent from the Drug Enforcement Agency met to sign a proffer letter which detailed the terms of the agreement, including a clause concerning the importance of a truthful and candid statement, but which did not include a promise to make a Rule 35(b) motion. See Exh. 3 to Declaration of AUSA John Purcell.
On January 23, 1996, Ash wrote a letter to Purcell regarding the proposed Rule 35(b) motion. *fn1 Purcell responded to the letter on February 7, 1996 stating that no Rule 35(b) motion would be filed. *fn2 See Pet. Br. at App. D. The Government informed Mr. Garcia that the Rule 35(b) request was being denied because, in part, he had lied during his testimony.2
On November 10, 1995, petitioner, filed his petition for a writ of habeas corpus, pro se.
This court may not consider Garcia's habeas corpus petition, under 28 U.S.C. § 2241, because sentencing reductions should be challenged before the sentencing court under 28 U.S.C. § 2255 not under 28 U.S.C. § 2241. Therefore, this court does not have jurisdiction.
Petitioner's claim that 28 U.S.C. § 2241 is the proper vehicle for his challenge to the government's failure to make a Rule 35(b) motion is misplaced. Challenges to sentences must be made before the sentencing judge. Generally, sentences handed down by judges are final. The main exception to the finality of sentences is Rule 35(b), where the government may make a motion to the sentencing court to decrease the length of an inmate's prison term in exchange for useful testimony regarding criminal behavior. The underlying objective of Rule 35 is "to give every convicted defendant a second round before the sentencing judge, and [afford] the judge an opportunity to reconsider the sentence in light of any further information about the defendant or the case which may have been presented to him in the interim." United States v. Ellenbogen, 390 F.2d 537, 543 (2d. Cir. 1968). The motion must be brought before the sentencing judge. See United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir. 1982); United States v. Fernandez, 589 F.2d 977, 979 (9th Cir. 1978), cert. denied, 442 U.S. 911 (1979); United States v. Arnett, 628 F.2d 1162, 1165-1166 (9th Cir. 1979).
Fed. R. Crim. P. 35(b) states:
Reduction of Sentence for Substantial Assistance. If the Government so moves within one year after the sentence is imposed, the court may reduce a sentence to reflect a defendant's subsequent substantial assistance in investigating or prosecuting another person, in accordance with the guidelines and policy statements issued by the Sentencing Commission under 28 U.S.C. § 994. The court may consider a government motion to reduce a sentence made one year or more after the sentence is imposed if the defendant's substantial assistance involves information or evidence not known by the defendant until one year or more after the sentence is imposed. In evaluating whether substantial assistance has been rendered, the court may consider the ...