(HC) Patrick Jones v. Warden of USP Atwater, No. 1:2015cv01020 - Document 19 (E.D. Cal. 2016)
Court Description: ORDER Denying 18 Motion for Reconsideration, signed by District Judge Anthony W. Ishii on 1/20/16. (Gonzalez, R)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK JONES, 12 13 14 15 Case No. 1:15-cv-01020-AWI-SAB-HC Petitioner, ORDER DENYING MOTION FOR RECONSIDERATION v. (ECF No. 18) WARDEN of USP ATWATER, Respondent. 16 17 Petitioner is a federal prisoner who had filed a petition for writ of habeas corpus pursuant 18 to 28 U.S.C. § 2241. 19 On September 30, 2015, the Court adopted the Magistrate Judge’s findings and 20 recommendation, dismissed the petition as it did not allege cognizable grounds for a petition 21 pursuant to 28 U.S.C. § 2241, declined to issue a certificate of appealability because it was a 22 successive § 2255 petition disguised as a § 2241 petition, denied as moot Petitioner’s motion to 23 print legal mail notice on the envelope, denied Petitioner’s motion for reconsideration of the 24 order denying Petitioner’s motion to appoint counsel and motion for release from custody, and 25 directed the Clerk of Court to close the case. (ECF No. 16.) 26 A petitioner may file a motion for reconsideration of a final judgment, and the motion 27 may be treated as a motion to alter or amend the judgment under Federal Rule of Civil Procedure 28 59(e) or as a motion for relief from judgment or an order under Federal Rule of Civil Procedure 1 1 60(b). Rule 59(e) provides that “[a] motion to alter or amend a judgment must be filed no later 2 than 28 days after the entry of the judgment.” Petitioner filed his motion for reconsideration on 3 October 27, 2015, the day he handed it to prison officials for mailing, which is within 28 days of 4 the entry of judgment. Therefore, the Court considers Petitioner’s motion under Rule 59(e). 5 Petitioner’s arguments do not merit reconsideration of the dismissal. It is clear that 6 Petitioner is serving a life sentence pursuant to the judgment and commitment in case number 7 6:02-CR-00193 that was entered on October 9, 2003, in the United States District Court for the 8 Western District of Texas. Petitioner attempts to argue that there are two sets of charges and that 9 he was not actually convicted on the set of charges that he is presently incarcerated for. 10 However, it is clear that there is only one set of charges related to Petitioner’s possession with 11 intent to distribute crack cocaine in case number 6:02-CR-00193. Contrary to Petitioner’s 12 arguments, it is clear that his petition for writ of habeas corpus is not a pretrial petition. 13 Liberally construing Petitioner’s motion for reconsideration, it appears that Petitioner 14 argues that he was convicted of possession with intent to distribute over 1.5 kilograms but less 15 than 4.5 kilograms of crack cocaine, but the jury did not specifically find him guilty of the 1.5 16 kilograms but less than 4.5 kilograms of crack cocaine. Petitioner concedes that the jury did find 17 him guilty of possession with intent to distribute 50 grams or more of crack cocaine. Although 18 Petitioner is correct that the jury did not specifically find him guilty of possession with intent to 19 distribute over 1.5 kilograms but less than 4.5 kilograms of crack cocaine, the jury did find him 20 guilty of possession with intent to distribute 50 grams or more of crack cocaine. At the 21 sentencing hearing on October 2, 2003, the Court heard evidence and found that the amount of 22 crack cocaine was over 1.5 kilograms but less than 4.5 kilograms. 23 Liberally construing Petitioner’s motion for reconsideration, it appears that Petitioner 24 argues that because it was the judge and not the jury who found that he possessed with the intent 25 to distribute over 1.5 kilograms but less than 4.5 kilograms of crack cocaine, that he is actually 26 innocent. 27 Although not specifically cited by Petitioner, it appears that Petitioner is arguing that in 28 light of the United States Supreme Court case of Alleyne v. United States, ––– U.S. ––––, 133 2 1 S.Ct. 2151, 186 L.Ed.2d 314 (2013), he has not been properly convicted. In Alleyne, the 2 Supreme Court extended the reach of its decision in Apprendi v. New Jersey, 530 U.S. 466, 120 3 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and held that any fact that increases a mandatory minimum 4 sentence is an element of the offense that must be proven to a jury beyond a reasonable doubt. 5 A federal court may not entertain an action over which it has no jurisdiction. Hernandez 6 v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). A federal prisoner who wishes to challenge the 7 validity or constitutionality of his federal conviction or sentence must do so by way of a motion 8 to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 9 1160, 1162 (9th Cir. 1988); see also Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006), cert. 10 denied, 549 U.S. 1313 (2007); Thompson v. Smith, 719 F.2d 938, 940 (8th Cir. 1983)=; In re 11 Dorsainvil, 119 F.3d 245, 249 (3rd Cir. 1997); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th 12 Cir. 1981). In such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. 13 In general, a prisoner may not collaterally attack a federal conviction or sentence by way of a 14 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States, 929 15 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 16 F.2d 840, 842 (5th Cir.1980). “The general rule is that a motion under 28 U.S.C. § 2255 is the 17 exclusive means by which a federal prisoner may test the legality of his detention, and that 18 restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 19 U.S.C. § 2241.” Stephens, 464 F.3d at 897 (citations omitted). Therefore, the proper vehicle for 20 challenging a conviction is a motion to vacate, set aside, or correct the sentence pursuant to 28 21 U.S.C. § 2255. 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. See Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 25 F.3d 861, 864-65 (9th Cir.2000) (per curiam); Brown v. United States, 610 F.2d 672, 677 (9th 26 Cir. 1990); Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 27 37 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 3 1 F.2d 476, 478-79 (3rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 2 1987). 3 Nevertheless, a “savings clause” exists in § 2255(e) by which a federal prisoner may seek 4 relief under § 2241 if he can demonstrate the remedy available under § 2255 to be “inadequate or 5 ineffective to test the validity of his detention.” United States v. Pirro, 104 F.3d 297, 299 (9th 6 Cir. 1997) (quoting § 2255); see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has 7 recognized that it is a very narrow exception. See Ivy v. Pontesso, 328 F.3d 1057, 59 (9th Cir.) 8 (as amended), cert. denied, 540 U.S. 1051 (2003). The remedy under § 2255 usually will not be 9 deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or because a 10 remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964) 11 (finding that a prior § 2255 motion is insufficient to render § 2255 inadequate); Tripati, 843 F.2d 12 at 1162-63 (holding that a petitioner's fears of bias or unequal treatment do not render a § 2255 13 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir. 1957); Hildebrandt v. Swope, 14 229 F.2d 582 (9th Cir. 1956). The burden is on the petitioner to show that the remedy is 15 inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 16 The Ninth Circuit has acknowledged that petitioners may proceed under Section 2241 17 pursuant to the “savings clause,” when the petitioner claims to be: “(1) factually innocent of the 18 crime for which he has been convicted; and, (2) has never had an ‘unobstructed procedural shot’ 19 at presenting this claim.” Ivy, 328 F.3d at 1059-60 (citing Lorentsen v. Hood, 223 F.3d 950, 954 20 (9th Cir.2000)); see also Stephens, 464 F.3d at 898. In explaining that standard, the Ninth 21 Circuit stated: 22 23 24 In other words, it is not enough that the petitioner is presently barred from raising his claim of innocence by motion under § 2255. He must never have had the opportunity to raise it by motion. 25 Ivy, 328 F.3d at 1060. 26 However, Petitioner has failed to demonstrate that his claims qualify under the “savings 27 clause” of Section 2255 because Petitioner's Alleyne claim presents purely legal arguments that 28 do not suffice to show Petitioner’s actual innocence. See Marrero v. Ives, 682 F.3d 1190, 1193- 4 1 95 (9th Cir. 2012), cert. denied, –– U.S. ––, 133 S.Ct. 1264, 185 L.Ed.2d 206 (2013). The 2 standards announced by the various circuit courts for an “actual innocence” claim contain two 3 basic features: actual innocence and retroactivity. E.g., Reyes–Requena v. United States, 243 4 F.3d 893, 903 (5th Cir. 2001); In re Jones, 226 F.3d 328 (4th Cir. 2000); In re Davenport, 147 5 F.3d 605 (7th Cir. 1998); In re Hanserd, 123 F.3d 922 (6th Cir. 1997); In re Dorsainvil, 119 F.3d 6 245 (3d Cir. 1997). In the Ninth Circuit, a claim of actual innocence for purposes of the Section 7 2255 “savings clause” is tested by the standard articulated by the United States Supreme Court in 8 Bousley v. United States, 523 U.S. 614 (1998). In Bousley, the Supreme Court explained that, 9 “[t]o establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is 10 more likely than not that no reasonable juror would have convicted him.” Bousley, 523 U.S. at 11 623 (internal quotation marks omitted). Furthermore, “actual innocence means factual 12 innocence, not mere legal insufficiency.” Id. 13 The decision in Alleyne is not relevant to the issue of whether Petitioner is actually 14 innocent of the crime for which he has been convicted, which is the standard for a claim to 15 qualify under the savings clause. See Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003). At 16 the present time, the Ninth Circuit has not held that a petitioner’s challenge to his sentence 17 qualifies for the savings clause, and therefore, Petitioner cannot avail himself of the savings 18 clause. See Marrero, 682 F.3d at 1194-95. Petitioner has not set forth specific facts not 19 previously presented that make a convincing case that Petitioner did not commit the offense. 20 Therefore, Petitioner’s Alleyne claim is not cognizable claims of actual innocence for the 21 purposes of qualifying under the savings clause to bring a Section 2241 petition. See Marrero, 22 682 F.3d at 1193-94. Moreover, Alleyne does not apply retroactively to cases on collateral 23 review. See Hughes v. United States, 770 F.3d 814 (9th Cir. 2014). 24 Thus, Petitioner has not satisfied the savings clause, and may not proceed under Section 25 2241. Motions pursuant to § 2255 must be heard in the sentencing court. 28 U.S.C. § 2255(a); 26 Hernandez, 204 F.3d at 864-65. Because this Court is only the custodial court and construes the 27 petition as a §2255 motion, this Court lacks jurisdiction over the petition. See Hernandez, 204 28 F.3d at 864-65. If Petitioner wishes to pursue his claims in federal court, he must do so by way 5 1 of a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 in the 2 sentencing court. This Court does not have jurisdiction to hear the petition. Therefore, 3 Petitioner’s motion for reconsideration must be denied. 4 Accordingly, IT IS HEREBY ORDERED that Petitioner’s motion for reconsideration is 5 DENIED. 6 7 IT IS SO ORDERED. 8 Dated: January 20, 2016 SENIOR DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
