Barron v. Deboo
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 5/30/11 ORDERING that petitioners application for writ of habeas corpus is DISMISSED without prejudice to petitioner seeking permission in the Ninth Circuit Court of Appeals to file a second motion attacking his sentence under 28 U.S.C. § 2255. CASE CLOSED. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JAMES ROY BARRON, JR.,
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Petitioner,
No. CIV S-11-0639 GGH (TEMP) P
vs.
KUMA J. DEBOO,
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ORDER1
Respondent.
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/
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On April 25, 2011, the court ordered petitioner to show cause why this action
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should not be dismissed as successive pursuant to 28 U.S.C. § 2255(h). In addition to the
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reasons set forth in the court’s April 25, 2011 order, the added citation of Gilbert v. United
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States, __F.3d__, 2011 WL 1885674 (11th Cir. 2011) (en banc) demonstrates why the “savings
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clause” of § 2255(e) would not apply to petitioner’s argument that he is entitled to proceed by
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way of § 2241. Simply because sentencing laws have lessened over the years in their severity
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does not mean that petitioner may now proceed by way of § 2241 because the remedy afforded
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by § 2255 is no longer available or effective to vacate the allegedly excessive sentence. Nor is
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petitioner actually innocent such that he can proceed by way of the exception set forth in §
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2255(h) because the sentencing laws have relaxed. See Alaimedo v. United States, 636 F.3d
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Petitioner is proceeding pursuant to 28 U.S.C. § 636(c) (consent to having the
undersigned preside).
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1092, 1096 (9th Cir. 2011) (To establish actual innocence for the purposes of habeas relief, a
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petitioner “must demonstrate that, in light of all the evidence, it is more likely than not that no
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reasonable juror would have convicted him.” Stephens, 464 F.3d at 898 (quoting Bousley v.
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United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). A petitioner is
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actually innocent when he was convicted for conduct not prohibited by law. See Reyes–Requena
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v. United States, 243 F.3d 893, 904 (5th Cir.2001) (summarizing the tests employed by the
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circuit courts to determine actual innocence). Finally, the change to crack cocaine sentencing
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policies is not a new rule of constitutional law as required by § 2255(h).
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Accordingly,
IT IS HEREBY ORDERED that petitioner’s application for writ of habeas corpus
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is dismissed without prejudice to petitioner seeking permission in the Ninth Circuit Court of
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Appeals to file a second motion attacking his sentence under 28 U.S.C. § 2255.
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DATED: May 30, 2011
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/s/ Gregory G. Hollows
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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
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GGH/kc/barr.0639.dis
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