Glory v. Sanders, No. 1:2009cv00031 - Document 4 (D. Guam 2010)
Court Description: Opinion and Order DENYING 1 Petition for Writ of Habeas Corpus filed by Rexielito J. Glory. The court hereby enters a final order adverse to the Petitioner and further DENIES a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings. Signed by Chief Judge Frances M. Tydingco-Gatewood on 9/16/2010. (fad)
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Glory v. Sanders Doc. 4 1 2 3 4 5 DISTRICT COURT OF GUAM 6 7 8 REXIELITO J. GLORY, Plaintiff, 9 vs. 10 11 Civil Case No. 09-00031 LINDA SANDERS, 12 OPINION AND ORDER RE: PETITION FOR 28 USC 2241 PURSUANT TO HABEAS CORPUS STATUTES 2241 - 2255 Respondent. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 This matter is before the court pursuant to a “Petition for 28 USC 2241 Pursuant to Habeas Corpus Statutes” filed by pro se Petitioner Rexielito Glory on December 28, 2009. Docket No. 1. Upon review of the Petitioner’s submission, as well as relevant caselaw and authority, the court hereby DENIES the petition and enters a final order adverse to the Petitioner, and DENIES a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts. I. FACTUAL BACKGROUND The Petitioner was charged in an Indictment June 20, 2001 with three counts of Conspiracy to Import Methamphetamine Hydrochloride in violation of 21 U.S.C. §§ 952(a), 960 and 963 and 18 U.S.C. § 2; one count of Importation of Methamphetamine Hydrochloride in violation of 21U.S.C. § 952 and 18 U.S.C. § 2; and one count of Distribution of Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) 846, and 18 U.S.C. § 2. See Docket No. 1, Criminal Case No. 01-00061. He entered a guilty plea to the distribution count on August 15, 2001. See Docket Nos. 11 and 12, Criminal Case No. 01-00061. On December 12, 2001, the 28 Dockets.Justia.com Glory v. Sanders, CV09-00031 Order re: Petition for 28 USC 2241 1 court sentenced the Petitioner to two hundred sixty-two (262) months of imprisonment. See 2 Docket No. 20, Criminal Case No. 01-00061. Judgment of conviction was entered on December 3 19, 2001. See Docket No. 21, Criminal Case No. 01-00061. In January 2, 2002, the Petitioner 4 filed an appeal with the Ninth Circuit, which affirmed his conviction on January 17, 2003. See 5 Docket Nos. 22 and 42, Criminal Case No. 01-00061. The Petitioner then filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or 6 7 Correct Sentence on March 29, 2003. See Docket Nos. 46 and 53, Criminal Case No. 01-00061. 8 This court denied his motion in its entirety on July 7, 2005, finding that there was no merit to the 9 Petitioner’s arguments that his sentence was unlawful and that he was subject to ineffective 10 assistance of counsel. See Docket No. 54, Criminal Case No. 01-00061. The Petitioner 11 requested a certificate of appealability, which this court denied on August 10, 2005. See Docket 12 Nos. 56 and 57, Criminal Case No. 01-00061. He then requested a certificate of appealability 13 from the Ninth Circuit, which was denied on November 22, 2005. See Docket No. 63, Criminal 14 Case No. 01-00061. 15 II. DISCUSSION 16 The Petitioner now seeks habeas corpus relief pursuant to 28 U.S.C. § 2241, and makes 17 several arguments challenging the legality of his conviction. See Docket No. 1, Civil Case No. 18 09-00031. 19 “Generally, motions to contest the legality of a sentence must be filed under § 2255 in the 20 sentencing court, while petitions that challenge the manner, location, or conditions of a 21 sentence’s execution must be brought pursuant to § 2241 in the custodial court.” Hernandez v. 22 Campbell, 204 F.3d 861, 864 (9th Cir. 2000). However, a prisoner may invoke the “escape 23 hatch” or “savings clause” of § 2255 and “file a habeas corpus petition pursuant to § 2241 to 24 contest the legality of a sentence where his remedy under § 2255 is ‘inadequate or ineffective to 25 test the legality of his detention.’” Id. at 864-65 (quoting 28 U.S.C. § 2255). 26 Although the Petitioner’s pleading is styled as a § 2241 petition, this court must “address 27 the initial jurisdictional question” and examine whether the petition is brought under § 2241 28 pursuant to the savings clause or under § 2255. Id. at 866 (“Because Congress made a deliberate Page 2 of 6 Glory v. Sanders, CV09-00031 Order re: Petition for 28 USC 2241 1 choice to give jurisdiction over § 2241 petitions and § 2255 motions to different courts, a district 2 court is obligated to determine whether a petition falls under § 2241, pursuant to the savings 3 clause, or under § 2255”). A § 2241 petition “that contests the legality of a sentence by falling 4 under the savings clause” must “be heard in the custodial court.” Id. at 865. The Petitioner is 5 incarcerated in the Federal Correctional Institution in Lompoc, California; therefore, the 6 “custodial court” is the Eastern District of California. “ On the other hand, § 2255 motions must 7 be heard in the sentencing court,” id., in which case, this court would have jurisdiction. 8 A. Whether the “escape hatch” or “savings clause” applies 9 “[A] motion meets the escape hatch criteria of § 2255 ‘when a petitioner (1) makes a 10 claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that 11 claim.’” Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008) (quoting Stephens v. Herrera, 12 464 F.3d 895, 898 (9th Cir. 2006) (internal quotation marks omitted)). The Petitioner must 13 satisfy both prongs of this test. “In this circuit, a claim of actual innocence for purposes of the escape hatch of § 2255 is 14 15 tested by the standard articulated by the Supreme Court in Bousley v. United States, 523 U.S. 16 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998): ‘To establish actual innocence, petitioner must 17 demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror 18 would have convicted him.’” Stephens, 464 F.3d at 898 (quoting Bousley, 523 U.S. at 623) 19 (internal quotation marks omitted)). In short, the Court held that “actual innocence means 20 factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623. Review of the petition reveals that the Petitioner’s arguments do not claim factual 21 22 innocence, but are grounded in “mere legal insufficiency.” Id. The Petitioner contends this 23 court lacked jurisdiction and that “facially jurisdiction lies in the Philippines” because the events 24 giving rise to the indictment occurred in the Philippines. Docket No. 1, pp. 6 and 8. He also 25 makes arguments based on the plea agreement: that the court improperly amended the plea 26 agreement, that the Government prosecutor violated the “letter and spirit” of the plea agreement, 27 /// 28 /// Page 3 of 6 Glory v. Sanders, CV09-00031 Order re: Petition for 28 USC 2241 1 and that he was punished against the terms of the plea agreement.1 See Docket No. 1, pp.7-10. 2 He objects to the “upward departure” for his leadership role in the conspiracy, and contends that 3 he received ineffective assistance of counsel. See id., pp. 7-10. Finally, he challenges this 4 court’s jurisdiction in light of Booker and Fanfan, and argues, inter alia, that a presentence 5 report “with constitutional errors . . . cannot create subject matter jurisdiction” and that “the 6 erroneous information contained in the [presentence report] cold have intruded and perplexed “ 7 the sentencing judge. See id., p. 11-15. 8 The Petitioner bears the burden of proving actual innocence by a preponderance of the 9 evidence. See Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000). However, because he 10 raises legal arguments, he fails to meet his burden of showing actual innocence. Thus, the 11 Petitioner cannot the invoke the savings clause of § 2255, and cannot proceed under § 2241. 12 Because “the savings clause does not come into play . . . then [the] petition must be construed as 13 a petition under§ 2255.” Hernandez, 204 F.3d at 866. 14 B. Whether the petition is brought under § 2255 15 “As a general rule, ‘§ 2255 provides the exclusive procedural mechanism by which a 16 federal prisoner may test the legality of detention.’” Harrison v. Ollison, 519 F.3d 952, 955 (9th 17 Cir. 2008) (quoting Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000)). This provision 18 allows a federal prisoner claiming that his sentence “was imposed in violation of the Constitution 19 or laws of the United States, or that the court was without jurisdiction to impose such sentence, 20 or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to 21 collateral attack” to “move the court which imposed the sentence to vacate, set aside or correct 22 23 24 25 26 27 28 1 The record reveals that the plea agreement signed by the Petitioner contained a provision stating that if he provided substantial assistance to federal investigative agencies, the Government would seek a downward departure from the statutory minimum sentence and Sentencing Guidelines. See Docket No. 11, Criminal Case No. 01-00061. During the Change of Plea hearing on August 15, 2001, the Petitioner indicated his understanding of this provision. See Docket No. 38, Criminal Case No. 01-00061. During the sentencing hearing on December 12, 2001, the Government prosecutor indicated that the Petitioner had not provided substantial assistance and refused to testify against his family members. Docket No. 38, Criminal Case No. 01-00061. The Petitioner’s counsel stated that “all other unindicted and indicted co-conspirators have already pled, so there was no opportunity to do anything.” Docket No. 38, Criminal Case No. 01-00061. Page 4 of 6 Glory v. Sanders, CV09-00031 Order re: Petition for 28 USC 2241 1 the sentence.” 28 U.S.C. § 2255(a). In this case, it is undisputed that the Petitioner filed a § 2255 motion on March 29, 2003, 2 3 which was denied on July 7, 2005. See Docket Nos. 46, 53 and 54, Criminal Case No. 01-00061. 4 He was denied a certificate of appealability from this court on August 10, 2005, and from the 5 Ninth Circuit on November 22, 2005. See Docket Nos. 57 and 63, Criminal Case No. 01-00061. 6 Therefore, this court examines the instant petition as a “second or successive” petition. “A 7 second or successive motion must be certified as provided in section 2244 by a panel of the 8 appropriate court of appeals to contain” either (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or 9 10 11 (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 12 13 28 U.S.C. § 2255(h). Moreover, strict limitations are placed on second or successive petitions. 14 See Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) (citing 28 U.S.C. § 2244(b)); see also 15 United States v. Lopez, 577 F.3d 1053, 1059 (9th Cir. 2009) (stating that the “AEDPA imposes 16 significant limitations on the power of federal courts to award relief to prisoners who file 17 ‘second or successive’ habeas petitions.”). Nothing in the record demonstrates that the Petitioner satisfied the “§ 2255(h) 18 19 gatekeeping requirements” by obtaining the requisite certification from a Ninth Circuit panel of 20 judges. Lopez, 577 F.3d at 1068. The Petitioner himself does not claim that he sought or 21 received such certification. Because the Petitioner was not granted the requisite certification 22 from the Ninth Circuit to bring this successive petition, this court lacks jurisdiction to rule on his 23 petition. See Burton v. Stewart, 549 U.S. 147 (2007) (per curiam) (holding that the district court 24 lacked jurisdiction to consider a second or successive application because the petitioner did not 25 first obtain authorization as required by the AEDPA). 26 III. 27 28 CONCLUSION The court finds that the “Petition for 28 USC 2241 Pursuant to Habeas Corpus Statutes” is a “second or successive” petition. Because the Petitioner has failed to obtain the requisite Page 5 of 6 Glory v. Sanders, CV09-00031 Order re: Petition for 28 USC 2241 1 certificate of appealability from the Ninth Circuit prior to filing this action, this court has no 2 jurisdiction to hear the matter. 3 Accordingly, the court HEREBY DENIES the “Petition for 28 USC 2241 Pursuant to 4 Habeas Corpus Statutes,” enters a final order adverse to the Petitioner, and further DENIES a 5 certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings 6 for the United States District Courts. 7 SO ORDERED. 8 9 10 /s/ Frances M. Tydingco-Gatewood Chief Judge Dated: Sep 16, 2010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 6 of 6
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