(HC) Sterling-Suarez v. Matevousian, No. 1:2015cv01883 - Document 5 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus; ORDER Requiring That Objections Be Filed Within Twenty-One Days; ORDER Directing Clerk of Court to Assign District Judge to Case, signed by Magistrate Judge Jennifer L. Thurston on 1/6/16. (Hellings, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 QUESTER STERLING-SUAREZ, Petitioner, 12 13 v. 14 ANDRE MATEVOUSIAN, 15 Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-01883-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS ORDER REQUIRING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE In this action, Petitioner challenges his 2005 conviction for aiding and abetting a murder and 18 the life sentence imposed as a result. (Doc. 1, pp. 1-2). Specifically, Petitioner challenges the jury 19 instruction given at trial regarding the mental state for a conviction for “aiding and abetting” the use of 20 a firearm under 18 U.S.C. § 924(c), which, Petitioner maintains, has been significantly altered by the 21 U.S. Supreme Court case of Rosamond v. United States, __U.S.__, 134 S.Ct. 1240, 188 L.Ed.2d 248 22 (2014). Petitioner further contends that, based on Rosamond, he is “actually innocent” and that he is 23 entitled to proceed via § 2241 even though he is challenging his conviction, not the execution of his 24 sentence. (Doc. 1, pp. 26-28). 25 Because the Court has determined that Petitioner’s challenge to his original sentence is not 26 entitled to the “savings clause,” and therefore should have been brought in the trial court as a motion 27 pursuant to 28 U.S.C. § 2255, the Court will RECOMMEND that the instant petition be 28 DISMISSED. 1 1 2 I. DISCUSSION A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. 3 Campbell, 204 F.3d 861, 865 (9th Cir. 2000). A federal prisoner who wishes to challenge the validity 4 or constitutionality of his conviction or sentence must do so by way of a motion to vacate, set aside, or 5 correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); 6 Thompson v. Smith, 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997); 7 Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing court 8 has jurisdiction. Tripati, 843 F.2d at 1163. 9 conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 10 Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United 11 States v. Flores, 616 F.2d 840, 842 (5th Cir.1980). 12 A prisoner may not collaterally attack a federal In contrast, a federal prisoner challenging the manner, location, or conditions of that sentence's 13 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Capaldi v. 14 Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 15 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 16 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3rd Cir. 1991); United 17 States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v. United States, 610 F.2d 672, 677 18 (9th Cir. 1990). 19 Petitioner alleges that Rosamond v. United States should result in the Court setting aside his 20 conviction because he did not have prior knowledge that his accomplice had a weapon. Thus, he 21 makes a direct challenge to his conviction rather than to the execution of his sentence. Indeed, 22 Petitioner concedes as much in his petition. 23 The proper vehicle for making such a challenge is a motion to vacate, set aside, or correct the 24 sentence pursuant to 28 U.S.C. § 2255, not a habeas corpus petition. Nevertheless, a federal prisoner 25 authorized to seek relief under § 2255 may seek relief under § 2241 if he can show that the remedy 26 available under § 2255 is "inadequate or ineffective to test the validity of his detention." Hernandez v. 27 Campbell, 204 F.3d 861, 864-5 (9th Cir.2000); United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) 28 (quoting § 2255). The Ninth Circuit has recognized that this is a very narrow exception. Id; Ivy v. 2 1 Pontesso, 328 F.3d 1057 (9th Cir. 2003) (a petitioner must show actual innocence and that he never had 2 the opportunity to raise it by motion to demonstrate that § 2255 is inadequate or ineffective); Holland v. 3 Pontesso, 234 F.3d 1277 (9th Cir. 2000) (§ 2255 not inadequate or ineffective because Petitioner misses 4 statute of limitations); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s denial of a prior § 2255 motion 5 is insufficient to render § 2255 inadequate.); Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) 6 (same); Tripati, 843 F.2d at 1162-63 (9th Cir.1988) (a petitioner's fears of bias or unequal treatment do 7 not render a § 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); 8 Hildebrandt v. Swope, 229 F.2d 582 (9th Cir.1956); see United States v. Valdez-Pacheco, 237 F.3d 9 1077 (9th Cir. 2001) (procedural requirements of § 2255 may not be circumvented by invoking the All 10 Writs Act, 28 U.S.C. § 1651). The burden is on the petitioner to show that the remedy is inadequate or 11 ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). In Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003), the Ninth Circuit held that the remedy under 12 13 a § 2255 motion would be “inadequate or ineffective” if a petitioner is actually innocent, but 14 procedurally barred from filing a second or successive motion under § 2255. Ivy, 328 F.3d at 1060- 15 1061. That is, relief pursuant to § 2241 is available when the petitioner’s claim satisfies the following 16 two-pronged test: “(1) [the petitioner is] factually innocent of the crime for which he has been 17 convicted and, (2) [the petitioner] has never had an ‘unobstructed procedural shot’ at presenting this 18 claim.” Id. at 1060. Petitioner contends that he has never had an unobstructed procedural shot at presenting his 19 20 claim because Rosamond was decided after Petitioner had already filed his first § 2255 petition in the 21 sentencing court.1 (Doc. 1, p. 5). Leaving aside that contention for the moment, it is clear that 22 Petitioner has failed to meet the second prong, i.e., actual innocence. . “To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is 23 24 more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 25 523 U.S. 614, 623 (1998)(quoting Schlup v. Delo, 513 U.S. 298, 327-328 (1995)); Stephens v. Herrera, 26 27 28 1 While this is true, Rosamond was decided a full year before the Court ruled on his § 2255 petition. (Doc. 1 at 4) Thus, Petitioner’s claim that [Rosamond] was unavailable during petitioner’s . . . first 2255” is incorrect. Rather, Petitioner offers no explanation for his failure to alert the sentencing court during the proceedings on his § 2255 petition of the Rosamond decision and how he believed it impacted his conviction. 3 1 464 F.3d 895, 898 (9th cir. 2008). “[A]ctual innocence means factual innocence, not mere legal 2 insufficiency,” and “in cases where the Government has forgone more serious charges in the course of 3 plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” Bousley, 4 523 U.S. at 623-624 (emphasis supplied). However, a petitioner’s obligation to demonstrate actual 5 innocence is limited to crimes actually charged or consciously forgone by the Government in the course 6 of plea bargaining. See, e.g., id. at 624 (rejecting government’s argument that defendant had to 7 demonstrate actual innocence of both “using” and “carrying” a firearm where the indictment only 8 charged using a firearm). 9 Although the Supreme Court has provided little guidance regarding the nature of an “actual 10 innocence” claim, the standards announced by the various circuit courts contain two basic features: 11 (1) actual innocence, and (2) retroactivity. E.g., Reyes-Requena v. United States, 243 F.3d 893, 903 12 (5th Cir. 2001); In re Jones, 226 F.3d 328 (4th Cir. 2000); In re Davenport, 147 F.3d 605 (7th Cir. 13 1998); Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997); In re Hanserd, 123 F.3d 922 (6th Cir. 14 1997); In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). 15 In Rosamond, the Supreme Court held that conviction of a charge of aiding and abetting an 18 16 U.S.C. § 924(c) violation requires proof of advance knowledge that a co-defendant would use or carry 17 a gun. Rosamond, 134 S.Ct. at 1249-50. Thus, Rosamond is not relevant to the issue of whether 18 Petitioner is actually innocent of that charge, but rather to whether he is legally innocent of that 19 charge. As mentioned, in this case, the Court need not determine whether Petitioner has had an 20 unobstructed procedural shot or whether his claim, based on Rosamond, is one involving factual, or 21 merely legal, innocence, because Rosamond is presently inapplicable to cases, such as the instant one, 22 that are on collateral review. 23 Instead, Rosamond was decided on direct review, and, accordingly, the Supreme Court had no 24 occasion to address an actual innocence claim, but rather merely the underlying instructional error 25 claim. Moreover, there is no indication in the decision by the Court that the rule declared therein 26 regarding the mental state required to aid and abet a § 924(c) offense would apply retroactively on 27 collateral appeal. Reyes-Requena, 243 F.3d at 903. For this reason alone, Petitioner is not entitled to 28 avail himself of the “savings clause.” 4 1 Section 2255 motions must be heard in the sentencing court. 28 U.S.C. § 2255(a); Hernandez, 2 204 F.3d at 864-865. Because this Court is only the custodial court and construes the petition as a § 3 2255 motion, this Court lacks jurisdiction over the petition. Hernandez, 204 F.3d at 864-865. In sum, 4 should Petitioner wish to pursue his claims in federal court, he must do so by way of a motion to 5 vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ORDER 6 7 8 For the foregoing reasons, the Clerk of the Court is HEREBY DIRECTED to assign a United States District Court judge to this case. 9 RECOMMENDATION 10 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 11 12 DISMISSED. This Findings and Recommendation is submitted to the United States District Court Judge 13 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 14 Local Rules of Practice for the United States District Court, Eastern District of California. Within 21 15 days after being served with a copy of this Findings and Recommendation, any party may file written 16 objections with the Court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be 18 served and filed within 10 days (plus three days if served by mail) after service of the Objections. The 19 Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties 20 are advised that failure to file objections within the specified time may waive the right to appeal the 21 Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 24 25 IT IS SO ORDERED. Dated: January 6, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 26 27 28 5
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