(HC) Bowman v. Rios, No. 1:2011cv00440 - Document 10 (E.D. Cal. 2011)
Court Description: ORDER DENYING 9 Motion for relief from the Judgment of Dismissal; ORDER DECLINES to **ISSUE A CERTIFICATE OF APPEALABILITY, signed by Magistrate Judge Sheila K. Oberto on 7/29/2011. (Martin-Gill, S)
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(HC) Bowman v. Rios Doc. 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 WESLEY WILLIAM BOWMAN, 13 Petitioner, 14 15 16 17 v. H. A. RIOS, Warden, Respondent. 18 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00440-SKO-HC ORDER DENYING PETITIONER’S MOTION FOR RELIEF FROM THE JUDGMENT (DOC. 9) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 19 Petitioner is a federal prisoner who proceeded pro se in a 20 habeas corpus action pursuant to 28 U.S.C. § 2241. Pursuant to 21 28 U.S.C. § 636(c)(1), Petitioner consented to the jurisdiction 22 of the United States Magistrate Judge to conduct all further 23 proceedings in the case, including the entry of final judgment, 24 by manifesting consent in a signed writing filed by Petitioner on 25 March 23, 2011 (doc. 5). On April 8, 2011, the Court dismissed 26 the petition for lack of jurisdiction, declined to issue a 27 certificate of appealability, and entered judgment pursuant to 28 1 Dockets.Justia.com 1 2 the order of dismissal. Pending before the Court is Petitioner’s motion for relief 3 from the judgment pursuant to Fed. R. Civ. P. 60(b)(4), which was 4 filed on May 13, 2011. 5 void due to plain error as he was actually or factually innocent 6 of the legal requirements for enhancement of his sentence because 7 one prior conviction of tampering with an automobile was not a 8 crime of violence as found by the sentencing court. 9 10 11 I. Petitioner contends that the judgment was Motion for Relief from the Judgment of Dismissal A. Legal Standards Fed. R. Civ. P. 60 applies to habeas proceedings only to the 12 extent that application is not inconsistent with the applicable 13 federal statutes and rules. 14 529 (2005) (challenge to dismissal of a § 2254 petition for 15 untimeliness). Gonzalez v. Crosby, 545 U.S. 524, 16 Here, Petitioner challenges the Court’s determination that 17 dismissal of the §2241 petition was required because Petitioner 18 had not shown that his remedy pursuant to 28 U.S.C. § 2255 was 19 inadequate or ineffective. 20 is appropriately applied in Petitioner’s case. The Court will assume that Rule 60(b) 21 Federal Rule of Civil Procedure 60(b) governs the 22 reconsideration of final orders of the district court. 23 permits a district court to relieve a party from a final order or 24 judgment on various grounds, including 1) mistake, inadvertence, 25 surprise, or excusable neglect; 2) newly discovered evidence; 26 3) fraud or misconduct by an opposing party; 4) a void judgment; 27 5) a satisfied judgment; or 6) any other reason that justifies 28 relief from the judgment. Fed. R. Civ. P. 60(b). 2 The rule The motion for 1 reconsideration must be made within a reasonable time, and with 2 respect to the first three grounds, no more than a year after the 3 entry of the judgment, order, or proceeding. 4 60(c). 5 the trial court. 6 (D.C.Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 7 1983) (en banc). 8 of a strongly convincing nature to induce the Court to reverse 9 its prior decision. Fed. R. Civ. P. Motions to reconsider are committed to the discretion of Combs v. Nick Garin Trucking, 825 F.2d 437, 441 To succeed, a party must set forth facts or law See, e.g., Kern-Tulare Water Dist. v. City 10 of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff'd in 11 part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 12 1987), cert. denied, 486 U.S. 1015 (1988). 13 stated that "[c]lause 60(b)(6) is residual and ‘must be read as 14 being exclusive of the preceding clauses.'" 15 Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir. 16 1986) (quoting Corex Corp. v. United States, 638 F.2d 119 (9th 17 Cir. 1981)). 18 ‘extraordinary circumstances.'" Id. 19 The Ninth Circuit has LaFarge Conseils et Accordingly, "the clause is reserved for Further, when filing a motion for reconsideration, Local 20 Rule 230(j) requires a party to show the "what new or different 21 facts or circumstances are claimed to exist which did not exist 22 or were not shown upon such prior motion, or what other grounds 23 exist for the motion," as well as “why the facts or circumstances 24 were not shown at the time of the prior motion.” 25 26 B. Facts Here, Petitioner alleged that he was an inmate of the United 27 States Penitentiary at Atwater, California (USPA) who challenged 28 his sentence of one hundred (100) months imposed in case number 3 1 06-00037-01-CR-W-HFS on September 5, 2006, by the United States 2 District Court for the Western District of Missouri upon 3 Petitioner’s conviction of being a felon in possession of a 4 firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924 (a)(2). 5 (Pet. 6-7.) 6 enhanced his sentence for having two prior convictions for a 7 crime of violence or a controlled substance offense, when in fact 8 Petitioner had only one such predicate conviction. 9 Petitioner alleged that he was “factually innocent” of the legal Petitioner alleged that the sentencing court (Pet. 6.) 10 requirements for the enhanced sentence because one prior 11 conviction of tampering with an automobile was not a crime of 12 violence as found by the sentencing court. 13 that his sentence be vacated and that his case be remanded for 14 resentencing based on only one prior conviction for a controlled 15 substance offense. 16 Petitioner prayed Petitioner admitted that prison officials could not grant 17 the relief he requested. 18 had not filed previous petitions under 28 U.S.C. §§ 2241 or 2255. 19 (Pet. 4.) 20 21 C. (Pet. 3.) He further indicated that he Analysis A federal prisoner who wishes to challenge his conviction or 22 sentence on the ground it was imposed in violation of the 23 Constitution or laws of the United States or was otherwise 24 subject to collateral attack must do so by way of a motion to 25 vacate, set aside, or correct the sentence under 28 U.S.C. 26 § 2255. 27 (9th Cir. 2006); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 28 1988). 28 U.S.C. § 2255; Stephens v. Herrera, 464 F.3d 895, 897 In such cases, the motion must be filed in the district 4 1 where the defendant was sentenced because only the sentencing 2 court has jurisdiction. 3 (9th Cir. 2000); Tripati, 843 F.2d at 1163. 4 prisoner may not collaterally attack a federal conviction or 5 sentence by way of a petition for a writ of habeas corpus 6 pursuant to 28 U.S.C. § 2241. 7 897 (9th Cir. 2006); Hernandez v. Campbell, 204 F.3d 861, 864 Generally, a Stephens v. Herrera, 464 F.3d 895, Tripati, 843 F.2d at 1162. 8 In contrast, a federal prisoner challenging the manner, 9 location, or conditions of that sentence's execution must bring a 10 petition for writ of habeas corpus under 28 U.S.C. § 2241. 11 v. United States, 610 F.2d 672, 677 (9th Cir. 1990). 12 Brown A federal prisoner authorized to seek relief under § 2255 13 may seek relief under § 2241 only if he can show that the remedy 14 available under § 2255 is "inadequate or ineffective to test the 15 legality of his detention." 16 297, 299 (9th Cir. 1997) (quoting § 2255). 17 little guidance on when § 2255 is an inadequate or ineffective 18 remedy, the Ninth Circuit has recognized that the exception is 19 narrow. 20 (dismissal of a successive motion pursuant to § 2255 did not 21 render such motion procedure an ineffective or inadequate remedy 22 so as to authorize a federal prisoner to seek habeas relief); 23 Aronson v. May, 85 S.Ct. 3, 5 (1964) (denial of a prior § 2255 24 motion is insufficient to render § 2255 inadequate); Tripati, 843 25 F.2d at 1162-63 (9th Cir. 1988) (a petitioner's fears of bias or 26 unequal treatment do not render a § 2255 petition inadequate); 27 see, United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 28 2001) (procedural requirements of § 2255 may not be circumvented United States v. Pirro, 104 F.3d Although there is Id; Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) 5 1 by filing a petition for writ of audita querela pursuant to the 2 All Writs Act, 28 U.S.C. § 1651). 3 petitioner to show that the remedy is inadequate or ineffective. 4 Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 5 petitioner proceeding pursuant to § 2241 fails to meet the burden 6 of demonstrating that the § 2255 remedy is inadequate or 7 ineffective, then the § 2241 petition will be dismissed for lack 8 of jurisdiction. 9 2003). 10 The burden is on the If a Ivy v. Pontesso, 328 F.3d 1057, 1061 (9th Cir. In this case, Petitioner challenged his underlying sentence 11 because of the sentencing court’s use of prior convictions in 12 determining the length of the sentence. 13 alleging errors in his sentence, and not errors in the 14 administration of his sentence, the Court correctly concluded 15 that Petitioner was not entitled to relief under § 2241. 16 addition, Petitioner made no express claim that § 2255 was 17 inadequate or ineffective. 18 § 2255 remained available to Petitioner. 19 Because Petitioner was In Therefore, it appeared that Petitioner urges that he was factually innocent of the legal 20 requirements for the enhanced sentence because one prior 21 conviction of tampering with an automobile was not a crime of 22 violence as found by the sentencing court. 23 circuit cases which have granted relief based on a showing of 24 factual innocence of sentencing enhancements, as distinct from a 25 showing of factual innocence of the offense or offenses for which 26 the petitioner was sentenced. 27 § 2255 was otherwise unavailable to Petitioner, he did not 28 establish actual innocence sufficient to permit him to proceed He relies on out of However, even assuming that 6 1 2 pursuant to § 2241. Although authority in this circuit is limited, it is 3 recognized that the § 2255 remedy is inadequate and ineffective. 4 Thus a petition pursuant to § 2241 is available, when the 5 petitioner 1) claims to be factually innocent of the crime for 6 which he has been convicted, and 2) has never had an 7 “unobstructed procedural shot” at presenting the claim. 8 v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006). 9 a claim of actual innocence for purposes of the “escape hatch” of Stephens In this circuit, 10 § 2255 is assessed by the test stated in Bousley v. United 11 States, 523 U.S. 614, 623 (1998), which in turn requires that the 12 petitioner demonstrate that in light of all the evidence, it is 13 more likely than not that no reasonable juror would have 14 convicted him. 15 Stephens, 464 F.3d 895, 898. Here, Petitioner does not allege or demonstrate that in 16 light of all the evidence, it is more likely than not that no 17 reasonable juror would have convicted him. 18 alleges only that he was factually innocent with respect to 19 findings concerning prior convictions considered for sentencing. 20 Thus, Petitioner has not established actual innocence as defined 21 by Bousley v. United States, and thus he has not met the standard 22 required in this circuit. 23 Lorentsen v. Hood, 223 F.3d at 954; see, Rith v. Rios, No. 1:10- 24 CV-01035 GSA HC, 2010 WL 2546052, *3-*4 (E.D.Cal. 2010). 25 Instead, Petitioner Stephens v. Herrera, 464 F.3d at 898; The cases from outside this circuit on which Petitioner 26 relies are not determinative. 27 courts of equal stature; one circuit’s decisions are not binding 28 on other circuits. All federal circuit courts are However, circuit authority generally binds 7 1 all courts within a particular circuit, including the court of 2 appeals itself, until it is overruled by the court itself sitting 3 en banc, or by the Supreme Court. 4 1155, 1171 (9th Cir. 2001). 5 Hart v. Massanari, 266 F.3d Because the dismissal of the petition was effected in 6 accordance with the precedent of this circuit, the judgment of 7 dismissal was not void. 8 judgment will be denied. 9 10 II. Petitioner’s motion for relief from the Certificate of Appealability Unless a circuit justice or judge issues a certificate of 11 appealability, an appeal may not be taken to the Court of Appeals 12 from the final order in a proceeding under section 2255. 13 U.S.C. § 2253(c)(1)(B); Hohn v. United States, 524 U.S. 236, 239- 14 40 (1998). 15 pursuant to 28 U.S.C. § 2241, but which is really a successive 16 application under § 2255, requires a certificate of 17 appealability. 18 2001). 19 28 Appeal from a proceeding that is nominally undertaken Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. It appears from the face of Petitioner’s § 2241 petition 20 that Petitioner is raising claims attacking only the legality of 21 his sentence, and not the execution of his sentence. 22 A certificate of appealability may issue only if the 23 applicant makes a substantial showing of the denial of a 24 constitutional right. 25 petitioner must show that reasonable jurists could debate whether 26 the petition should have been resolved in a different manner or 27 that the issues presented were adequate to deserve encouragement 28 to proceed further. § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 8 1 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 2 certificate should issue if the Petitioner shows that jurists of 3 reason would find it debatable whether the petition states a 4 valid claim of the denial of a constitutional right and that 5 jurists of reason would find it debatable whether the district 6 court was correct in any procedural ruling. 7 529 U.S. 473, 483-84 (2000). 8 9 A Slack v. McDaniel, In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their 10 merits, and determines whether the resolution was debatable among 11 jurists of reason or wrong. 12 applicant to show more than an absence of frivolity or the 13 existence of mere good faith; however, it is not necessary for an 14 applicant to show that the appeal will succeed. 15 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 16 A district court must issue or deny a certificate of 17 appealability when it enters a final order adverse to the 18 applicant. 19 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 20 debate whether the motion should have been resolved in a 21 different manner. 22 of the denial of a constitutional right. 23 will decline to issue a certificate of appealability. Petitioner has not made a substantial showing 24 III. 25 Accordingly, it is ORDERED that: 26 1) Accordingly, the Court 27 28 Disposition The motion for relief from the judgment of dismissal is DENIED; and 2) The Court DECLINES to issue a certificate of 9 1 appealability. 2 3 IT IS SO ORDERED. 4 Dated: ie14hj July 29, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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