United States District Court, E.D. Virginia, Norfolk Division
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. Krask United States Magistrate Judge
matter was brought by petition for a writ of habeas corpus
under 28 U.S.C. § 2241. ECF No. 1. It was referred to
the undersigned United States Magistrate Judge pursuant to
the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and
Rule 72 of the Rules of the United States District Court for
the Eastern District of Virginia.
undersigned recommends that the petition for a writ of habeas
corpus be construed as a motion pursuant to 28 U.S.C. §
2255, and DENIED and DISMISSED WITHOUT PREJUDICE because this
Court has no jurisdiction over a section 2255 motion.
STATEMENT OF THE CASE
Ernesto Cortes-Castro is a federal prisoner convicted and
sentenced in the United States District Court for the
Southern District of Florida (the "trial court"),
and presently confined at the Federal Correctional
Institution in Ashland, Kentucky.
second superseding indictment filed in the Southern District
of Florida on June 7, 2011, petitioner was charged with
conspiracy to commit sex trafficking, sex trafficking by
fraud or force, and transporting for prostitution in
violation of 18 U.S.C. §§ 1591(a)(1), 1591(b)(1),
and 1594(c). United States v. Velasquez, No.
1:11cr20005 (S.D. Fla. June 7, 2011); ECF No. 74 ("Trial
Court ECF"). On August 10, 2011, petitioner entered into
a plea agreement under which he pled guilty to the first
offense in exchange for the dismissal of all the remaining
charges. Trial Court ECF Nos. 133-35. On November 15, 2011,
petitioner was sentenced to a prison term of 180 months.
Trial Court ECF No. 162.
appealed to the United States Court of Appeals for the
Eleventh Circuit on November 18, 2011, challenging the
sentence and restitution order. United States v.
Cortes-Castro, 511 Fed.Appx. 942 (11th Cir. 2013); Trial
Court ECF No. 165. The Eleventh Circuit affirmed the district
court's judgment on March 7, 2013. Id.
December 18, 2013, petitioner filed a pro se motion
to vacate, set aside, or correct a sentence by a person in
federal custody under 28 U.S.C. § 2255 with the trial
court, challenging counsel's effectiveness and the
lawfulness of his sentence. Cortes-Castro v. United
States, No. 1:13cv24543 (S.D. Fla. Dec. 18, 2013). The
motion was denied on the merits on October 7, 2014.
Cortes-Castro v. United States, No. 1:13cv24543
(S.D. Fla. Oct. 7, 2014). The Eleventh Circuit denied
petitioner's motion for a certificate of appealability
because he failed to show that "reasonable jurists would
find debatable both (1) the merits of an underlying claim,
and (2) the procedural issues that he seeks to raise."
Cortes-Castro v. United States, No. 14-14787-D (11th
Cir. Mar. 4, 2015) (citing 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 478 (2000)).
12, 2015, petitioner filed a second motion pursuant to 28
U.S.C. § 2255, in the trial court. Cortes-Castro v.
United States, No. 1:15cv21815 (S.D. Fla. May 12, 2015).
The motion was denied as an unauthorized successive motion
because petitioner failed to obtain the certification
required by 18 U.S.C. § 2244(b)(3)(A) from the Eleventh
Circuit. Cortes-Castro v. United States, No.
1:15cv21815 (S.D. Fla. May 26, 2015), report and
recommendation adopted (S.D. Fla. Sept. 30, 2015).
has filed at least three applications for leave to file a
successive motion to vacate, which the Eleventh Circuit
denied on July 13, 2015, Cortes-Castro v. United
States, No. 15-12819-B (11th Cir. Jul. 13, 2015); March
4, 2016, Cortes-Castro v. United States, No.
16-10474-A (11th Cir. Mar. 4, 2016); and August 15, 2016,
Cortes-Castro v. United States, No. 16-15023-C (11th
Cir. Aug. 15, 2016).
September 7, 2016, petitioner filed his petition pursuant to
28 U.S.C. § 2241 in this court. ECF No. 1. On March 10,
2017, petitioner filed a motion to supplement, in which he
provides additional information related to his claims, ECF
No. 6, and the Court granted the motion on March 22, 2017.
ECF No. 7. On April 19, 2017, the United States filed a
response to petitioner's motion and supplement. ECF No.
8. Petitioner filed a reply on May 5, 2017. ECF No. 9.
petition advances the following six grounds for relief:
(1) the government's knowing use of false evidence to
produce the presentence report, ECF No. 1 at 1-6;
(2) the indictment "failed to state an offense, and
failed to apprise petitioner of the charge" upon which
he was ...