-GSA (HC) Estrada v. Benov, No. 1:2011cv00433 - Document 6 (E.D. Cal. 2011)
Court Description: FINDINGS And RECOMMENDATIONS Regarding Petition For Writ Of Habeas Corpus (Doc. 1 ), signed by Magistrate Judge Gary S. Austin on 3/28/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 5/2/2011. (Fahrney, E)
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-GSA (HC) Estrada v. Benov Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARTHUR WILLARD ESTRADA, 12 13 1:11-CV-00433 LJO GSA HC Petitioner, FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS v. 14 MICHAEL L. BENOV, Warden, 15 Respondent. 16 / 17 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241. 19 BACKGROUND1 20 Petitioner is currently incarcerated at the Taft Correctional Institution in Taft, California. 21 He challenges his 2000 sentence in the United States District Court for the Western District of 22 Oklahoma for being a felon in possession of a firearm and for being a felon in possession of a 23 controlled substance. He was sentenced under the Armed Career Criminal Act (“ACCA”) to 235 24 months imprisonment. Petitioner appealed to the Tenth Circuit Court of Appeal, and the 25 judgment was affirmed on January 25, 2002. 26 Petitioner has also filed post-conviction petitions for collateral relief. He filed a motion 27 28 1 This information was derived from the petition for writ of habeas corpus. 1 Dockets.Justia.com 1 to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 in the sentencing court, 2 and the motion was denied on September 12, 2003. He filed a motion for modification of 3 sentence and resentencing in the United States District Court for the Eastern District of Arkansas 4 on November 13, 2009. The motion was denied on December 9, 2009. He then filed a petition 5 for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the same court. The petition was 6 denied without prejudice on November 12, 2010. 7 Petitioner filed the instant petition for writ of habeas corpus on March 15, 2011. 8 Petitioner argues that his prior convictions for robbery were not “violent felonies” under the 9 ACCA. He contends that he is actually innocent of the ACCA sentencing designation and should 10 11 12 be released since his term for the underlying conviction has been served. DISCUSSION A federal prisoner who wishes to challenge the validity or constitutionality of his federal 13 conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence 14 under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also 15 Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007); 16 Thompson v. Smith, 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 17 1997); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the 18 sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. A prisoner may not collaterally 19 attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant 20 to 28 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d 21 at 1162; see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980). 22 In contrast, a prisoner challenging the manner, location, or conditions of that sentence's 23 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district 24 where the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 25 861, 864-65 (9th Cir.2000) (per curiam); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 26 1990); Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 27 F.3d 175, 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 28 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 2 1 F.2d 476, 478-79 (3rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 2 1987). “The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by 3 which a federal prisoner may test the legality of his detention, and that restrictions on the 4 availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” 5 Stephens, 464 F.3d at 897 (citations omitted). 6 As Petitioner acknowledges, an exception exists by which a federal prisoner may seek 7 relief under § 2241 if he can demonstrate the remedy available under § 2255 to be "inadequate or 8 ineffective to test the validity of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th 9 Cir.1997) (quoting § 2255); see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has 10 recognized that it is a very narrow exception. Ivy v. Pontesso, 328 F.3d 1057, 59 (9th Cir.) (as 11 amended), cert. denied, 540 U.S. 1051 (2003). The remedy under § 2255 usually will not be 12 deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or because a 13 remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964) (a 14 court’s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 15 F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition 16 inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229 F.2d 17 582 (9th Cir.1956). 18 The Ninth Circuit has provided little guidance on what constitutes “inadequate and 19 ineffective” in relation to the savings clause. It has acknowledged that “[other] circuits, however, 20 have held that Section 2255 provides an ‘inadequate and ineffective’ remedy (and thus that the 21 petitioner may proceed under Section 2241) when the petitioner claims to be: (1) factually 22 innocent of the crime for which he has been convicted; and, (2) has never had an ‘unobstructed 23 procedural shot’ at presenting this claim .” Ivy, 328 F.3d at 1059-60, citing Lorentsen v. Hood, 24 223 F.3d 950, 954 (9th Cir.2000)); see also Stephens, 464 F.3d at 898. The burden is on the 25 petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 26 F.2d 76, 83 (9th Cir.1963). 27 In this case, Petitioner is challenging the validity and constitutionality of his federal 28 sentence imposed by the United States District Court for the Western District of Oklahoma, 3 1 rather than an error in the administration of his sentence. Therefore, the appropriate procedure 2 would be to file a motion pursuant to § 2255 in the Western District of Oklahoma, not a habeas 3 petition pursuant to § 2241 in this Court. 4 Petitioner argues, however, that § 2255 is inadequate and ineffective, because he has 5 already filed a § 2255 motion and that motion has been denied. Under the AEDPA, a prisoner 6 may not bring a second or successive Section 2255 motion in district court unless “a panel of the 7 appropriate court of appeals” certifies that the motion contains: (1) newly discovered evidence 8 that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by 9 clear and convincing evidence that no reasonable factfinder would have found the movant guilty 10 of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral 11 review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255; see Harrison v. 12 Ollison, 519 F.3d 952, 955 (9th Cir.2008). Petitioner fails to meet either of these requirements. 13 First, newly discovered evidence is not at issue in this case. Second, Petitioner does not cite to 14 any cases, and the Court has found none, finding that the United States Supreme Court decisions 15 upon which Petitioner's claims are based, are “new rules” of constitutional law that are 16 retroactively applicable. Accordingly, it appears that Petitioner does not qualify to file a 17 successive Section 2255 motion. 18 Nevertheless, Petitioner's inability to meet the statutory requirements for filing a 19 successive Section 2255 motion does not automatically render the remedy under Section 2255 20 inadequate or ineffective. See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (concluding 21 that a Section 2255 movant may not avoid the limitations imposed on successive petitions by 22 styling his petition as one pursuant to Section 2241 rather than Section 2255, and that the 23 AEDPA required dismissal of petitioner's successive Section 2255 motion because his claim was 24 based neither on a new rule of constitutional law made retroactive by the Supreme Court nor on 25 new evidence). To the extent Petitioner may argue that his only remedy is to pursue his claims 26 via a habeas petition pursuant to Section 2241 because a panel of the Tenth Circuit would refuse 27 to certify a second or successive motion under Section 2255, Petitioner's argument fails. Section 28 2241 “is not available under the inadequate-or-ineffective-remedy escape hatch of [Section] 2255 4 1 merely because the court of appeals refuses to certify a second or successive motion under the 2 gatekeeping provisions of [Section] 2255.” Lorentsen, 223 F.3d at 953. Further, as previously 3 stated, the remedy under Section 2255 usually will not be deemed inadequate or ineffective 4 merely because a previous Section 2255 motion was denied, or because a remedy under that 5 section is procedurally barred. Id. at 953 (stating that the general rule in the Ninth Circuit is that 6 “the ban on unauthorized second or successive petitions does not per se make § 2255 ‘inadequate 7 or ineffective’ ”); see also United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir.2001) 8 (procedural limits on filing second or successive Section 2255 motion may not be circumvented 9 by invoking the All Writs Act, 28 U.S.C. § 1651); Moore, 185 F.3d at 1055 (rejecting petitioner's 10 argument that Section 2255 remedy was ineffective because he was denied permission to file a 11 successive Section 2255 motion, and stating that dismissal of a subsequent Section 2255 motion 12 does not render federal habeas relief an ineffective or inadequate remedy); Tripati, 843 F.2d at 13 1162-63. 14 In addition, Petitioner has failed to demonstrate that he has never had an unobstructed 15 procedural opportunity to present his claims to the sentencing court. Petitioner bases his claims 16 on the Supreme Court decisions in Johnson v. United States, 130 S.Ct. 1265 (2010); Chambers v. 17 United States, 555 U.S. 122 (2009); Begay v. United States, 553 U.S. 137 (2008); and United 18 States v. Shipp, 589 F.3d 1084, 1090 (10th Cir.2009). Chambers and Begay were decided prior to 19 Petitioner’s motion for modification of sentence and motion for resentencing filed in the 20 sentencing court on November 13, 2009. Therefore, the basis for his claims were available at the 21 time he filed his motion in the sentencing court. 22 Moreover, Petitioner has failed to demonstrate that his claims qualify under the savings 23 clause of Section 2255 because Petitioner's claims are not proper claims of “actual innocence.” In 24 the Ninth Circuit, a claim of actual innocence for purposes of the Section 2255 savings clause is 25 tested by the standard articulated by the United States Supreme Court in Bousley v. United 26 States, 523 U.S. 614 (1998). Stephens, 464 U.S. at 898. In Bousley, the Supreme Court explained 27 that, “[t]o establish actual innocence, petitioner must demonstrate that, in light of all the 28 evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley, 5 1 523 U.S. at 623 (internal quotation marks omitted). Petitioner bears the burden of proof on this 2 issue by a preponderance of the evidence, and he must show not just that the evidence against 3 him was weak, but that it was so weak that “no reasonable juror” would have convicted him. 4 Lorentsen, 223 F.3d at 954. 5 In this case, Petitioner does not assert that he is factually innocent of the crime for which 6 he was convicted. Rather, he claims that, for sentencing purposes, he does not have the requisite 7 qualifying prior “violent felony” convictions and, thus, he is actually innocent of being 8 designated a “Career Offender” based on his prior convictions for robbery. Under the savings 9 clause, however, Petitioner must demonstrate that he is factually innocent of the crime for which 10 he has been convicted, not the sentence imposed. See Ivy, 328 F.3d at 1060; Lorentsen, 223 F.3d 11 at 954 (to establish jurisdiction under Section 2241, petitioner must allege that he is “‘actually 12 innocent’ of the crime of conviction”); Edwards v. Daniels, 2006 U.S. Dist. LEXIS 94750, at *7, 13 2006 WL 3877525 (D.Or.2006) (“Petitioner's assertion that he is actually innocent of a portion of 14 his sentence does not qualify him for the ‘escape hatch’ of § 2255 because he must allege that he 15 is ‘legally innocent of the crime for which he has been convicted,’ not the sentence imposed.”), 16 adopted by Edwards v. Daniels, 2007 U.S. Dist. LEXIS 12356, 2007 WL 608115 (D.Or.2007). 17 Therefore, the instant § 2241 petition does not fit within the exception to the general bar against 18 using Section 2241 to collaterally attack a conviction or sentence imposed by a federal court. See 19 Lorentsen, 223 F.3d at 954 (declining to decide whether federal prisoners who are actually 20 innocent may resort to Section 2241 when relief is not available under Section 2255 because the 21 petitioner had not shown actual innocence); see also Stephens, 464 F.3d at 898-99 (concluding 22 that, although petitioner satisfied the requirement of not having had an “unobstructed procedural 23 shot” at presenting his instructional error claim under Richardson v. United States, 526 U.S. 813, 24 119 (1999) because the claim did not become available until Richardson was decided eight years 25 after his first Section 2255 motion had been denied and the claim did not satisfy the requirements 26 for a second or successive Section 2255 motion, petitioner could not satisfy the actual innocence 27 requirement as articulated in Bousley and, thus, failed to properly invoke the escape hatch 28 exception of Section 2255); Harrison, 519 F.3d at 959 (“[A] motion meets the escape hatch 6 1 criteria of § 2255 ‘when a petitioner (1) makes a claim of actual innocence, and (2) has not had 2 an unobstructed procedural shot at presenting that claim.’”). 3 Accordingly, the Court concludes that Petitioner has not demonstrated that Section 2255 4 constitutes an “inadequate or ineffective” remedy for raising his claims. Accordingly, Section 5 2241 is not the proper statute for raising Petitioner's claims, and the petition should be dismissed 6 for lack of jurisdiction. 7 8 9 10 11 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas corpus be DISMISSED as the petition alleges grounds not cognizable in a petition filed pursuant to 28 U.S.C. § 2241. This Findings and Recommendation is submitted to the United States District Court 12 Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 13 of the Local Rules of Practice for the United States District Court, Eastern District of California. 14 Within thirty (30) days after date of service of this Findings and Recommendation, Petitioner 15 may file written objections with the Court. Such a document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendation.” Failure to file objections within the 17 specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 18 951 F.2d 1153 (9th Cir. 1991). 19 20 21 IT IS SO ORDERED. Dated: 6i0kij March 28, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 7
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