Ewin Oscar Martinez v. J. L. Norwood, No. 2:2008cv05877 - Document 3 (C.D. Cal. 2008)

Court Description: OPINION AND ORDER by Judge Stephen V. Wilson. IT IS HEREBY ORDERED that the pending action be construed as a motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255 and, as such, Judgment should be entered dismissing the action without prejudice for lack of jurisdiction. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 EWIN OSCAR MARTINEZ, Petitioner, 12 13 vs. 14 J.L. NORWOOD, WARDEN, Respondent. 15 ) Case No. CV 08-5877-SVW(RC) ) ) ) OPINION AND ORDER ) ) ) ) ) ) 16 17 On September 9, 2008, petitioner Ewin Oscar Martinez, a federal 18 inmate confined in this judicial district, filed a purported petition 19 for writ of habeas corpus under 28 U.S.C. § 2241 challenging his 20 sentence under Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 21 166 L. Ed. 2d 856 (2007).1 22 23 24 25 26 27 28 1 This Court takes judicial notice under Fed. R. Evid. 201 of two prior actions petitioner has brought in this district court: (1) On May 21, 2007, petitioner filed his first purported habeas corpus petition under Section 2241 challenging his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). See Martinez v. United States of America, case no. CV 07-3324-SVW(RC) ( Martinez I ). This Court determined Martinez I was a motion under 28 U.S.C. § 2255 and transferred it to the Southern 1 2 BACKGROUND On September 22, 2000, in United States District Court for the 3 Southern District of Florida case no. 00-CR-00001-JAL,2 Judgment was 4 entered convicting petitioner of hostage taking and conspiracy to 5 commit hostage taking in violation of the Hostage Taking Act, 18 6 U.S.C. § 1203, carjacking and conspiracy to commit carjacking in 7 violation of 18 U.S.C. §§ 371, 2119(2) and [for] using and carrying a 8 firearm during and in relation to a crime of violence in violation of 9 18 U.S.C. § 924(c). United States v. Ferreira, 275 F.3d 1020, 1022 10 (11th Cir. 2001), cert. denied, 535 U.S. 977 (2002). 11 was sentenced to life in prison. 12 Appeals affirmed petitioner s convictions and sentence in a published 13 decision filed December 11, 2001. Id. The petitioner The Eleventh Circuit Court of Id. 14 15 On December 17, 2002, in United States District Court for the 16 Southern District of Florida case no. 02-CV-23561-JAL,3 petitioner 17 18 19 20 21 22 23 24 25 26 District of Florida. The petitioner attempted to appeal the order transferring Martinez I to the Southern District of Florida, but the Ninth Circuit dismissed the attempted appeal as improper. See Martinez v. United States of America, case no. 0755844. (2) On August 27, 2007, petitioner filed his second purported habeas corpus petition under Section 2241, again challenging his sentence under Apprendi and Blakely. Martinez v. Norwood, case no. CV 07-5584-SVW(RC) ( Martinez II ). This Court determined Martinez II was also a motion under Section 2255 and transferred it to the Southern District of Florida. 2 The Court takes judicial notice, pursuant to Fed. R. Evid. 201, of the docket sheet in Southern District of Florida case no. 00-CR-00001-JAL. Many of the historical procedural facts set forth are taken from this docket sheet. 3 27 28 The Court takes judicial notice, pursuant to Fed. R. Evid. 201, of the docket sheet in Southern District of Florida case no. 02-CV-23561-JAL. 2 1 filed a motion to vacate, set aside, or correct his sentence under 28 2 U.S.C. § 2255, citing Apprendi, and on February 1, 2006, Judgment was 3 entered denying petitioner s motion under Section 2255. 4 February 13, 2006, petitioner filed a notice of appeal; however, both 5 the district court and the Eleventh Circuit Court of Appeals denied 6 petitioner s request for a certificate of appealability. On 7 8 9 On or about March 21, 2007, petitioner filed a motion under Fed. R. Civ. P. 60(b) to vacate judgment adverse to petitioner s habeas, 10 which the district court treated as a second or successive motion 11 under Section 2255 and dismissed for lack of subject matter 12 jurisdiction on April 12, 2007. 13 appeal in the Eleventh Circuit Court of Appeals, which upheld the 14 district court s determination that petitioner had filed a successive 15 petition and affirmed the Judgment. 16 noted the motion raised the same Apprendi claim petitioner had 17 previously raised in his unsuccessful Section 2255 motion. The petitioner filed a notice of In so doing, the Eleventh Circuit 18 19 20 DISCUSSION The Court, having reviewed the pending petition, has determined 21 it is another motion to vacate, set aside or correct petitioner s 22 sentence under 28 U.S.C. § 2255, rather than a habeas corpus petition 23 under 28 U.S.C. § 2241. 24 (9th Cir. 2000) (per curiam) ( [A] court must first determine whether 25 a habeas petition is filed pursuant to § 2241 or § 2255 before 26 proceeding to any other issue. ). 27 Court has considered whether the pending action comes within Section 28 2255 s savings clause, and, for the reasons discussed below, has See Hernandez v. Campbell, 204 F.3d 861, 865 In making this determination, the 3 1 determined it does not. 2 3 The general rule is that a motion under 28 U.S.C. § 2255 is the 4 exclusive means by which a federal prisoner may test the legality of 5 his detention, and that restrictions on the availability of a § 2255 6 motion cannot be avoided through a petition under 28 U.S.C. § 2241. 7 Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citations 8 omitted), cert. denied, 127 S. Ct. 1896 (2007); Harrison v. Ollison, 9 519 F.3d 952, 955-56 (9th Cir. 2008). There is an exception to this 10 general rule, however, known as the escape hatch or savings 11 clause, which provides that [a] federal prisoner may file a habeas 12 petition under § 2241 to challenge the legality of a sentence when the 13 prisoner s remedy under § 2255 is inadequate or ineffective to test 14 the legality of his detention. 4 15 Stephens, 464 F.3d at 897. 16 demonstrating Section 2255 is inadequate or ineffective. 17 v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 18 on unauthorized second or successive petitions does not per se make a 19 § 2255 inadequate or ineffective. 20 (citation and internal quotation marks omitted); Lorentsen v. Hood, 21 223 F.3d 950, 953 (9th Cir. 2000). 22 why he did not, or could not, attempt to obtain authorization from the 23 Eleventh Circuit to file a second or successive motion under Section Harrison, 519 F.3d at 956; The petitioner has the burden of Redfield However, the ban Stephens, 464 F.3d at 898 Here, petitioner does not explain 24 25 26 27 28 4 [A] motion meets the escape hatch criteria of § 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim. Harrison, 519 F.3d at 959 (citation omitted); Stephens, 464 F.3d at 898. Here, petitioner does not, and cannot, claim actual innocence. 4 1 2255 raising a Cunningham claim. Thus, petitioner has failed to show 2 his remedy under Section 2255 is inadequate or ineffective and he 3 cannot invoke the savings clause to proceed under Section 2241. 4 Since the pending action is a motion to vacate sentence under 28 5 6 U.S.C. § 2255, and not a habeas corpus petition under Section 2241, 7 this Court does not have jurisdiction to consider petitioner s motion. 8 See 28 U.S.C. § 2255(a) ( A prisoner in custody under sentence of a 9 court established by Act of Congress claiming the right to be released 10 upon the ground that the sentence was imposed in violation of the 11 Constitution or laws of the United States, or that the court was 12 without jurisdiction to impose such sentence, or that the sentence was 13 in excess of the maximum authorized by law, or is otherwise subject to 14 collateral attack, may move the court which imposed the sentence to 15 vacate, set aside or correct the sentence. (emphasis added)). 16 Court advised petitioner in both Martinez I and Martinez II that the 17 Southern District of Florida is the only proper forum for a Section 18 2255 motion; yet, petitioner has again filed in this district court. 19 Thus, this Court declines to exercise its discretion to transfer this 20 action to the Southern District of Florida, 28 U.S.C. § 1631, and 21 instead dismisses this action without prejudice for lack of 22 jurisdiction. This Stephens, 464 F.3d at 899. 23 24 ORDER 25 IT IS HEREBY ORDERED that the pending action be construed as a 26 motion to vacate, set aside or correct the sentence under 28 U.S.C. 27 // 28 // 5 1 § 2255 and, as such, Judgment should be entered dismissing the action 2 without prejudice for lack of jurisdiction. 3 4 DATE: October 28, 2008 STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE 5 6 PRESENTED BY: 7 DATE: 8 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 9 10 Sept. 16, 2008 R&R-MDO\08-5877.mdo 9/15/08 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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