LARRY HENRICKS V. RICHARD IVES, No. 13-56304 (9th Cir. 2014)

Annotate this Case

Download PDF

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 12 2014 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT LARRY DARVELL HENRICKS, Petitioner - Appellant, v. U.S. COURT OF APPEALS No. 13-56304 D.C. No. 2:12-cv-09508-FMO MEMORANDUM* RICHARD B. IVES, Warden, Respondent - Appellee. Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding Submitted December 5, 2014** Before: HAWKINS, McKEOWN, and FRIEDLAND, Circuit Judges. Federal prisoner Larry Darvell Henricks appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2241 habeas corpus petition. We review de novo the dismissal of a section 2241 petition, see Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011), and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Henricks contends that he is actually innocent under Bailey v. United States, 516 U.S. 137 (1995), of using and/or carrying a firearm, in violation of 18 U.S.C. § 924(c)(1), and he therefore should be allowed to proceed with his section 2241 petition under the “escape hatch” of 28 U.S.C. § 2255(e). Henricks cannot establish that he has not had an “unobstructed procedural shot” at presenting this claim because he could have raised it in a timely section 2255 motion. See Harrison v. Ollison, 519 F.3d 952, 961 (9th Cir. 2008). Accordingly, the district court properly dismissed Henricks’s claim for lack of jurisdiction. See id. at 961-62. Contrary to Henricks’s contention, McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), does not compel a different result. We do not consider Henricks’s claim that his counsel on state direct appeal was constitutionally ineffective because this claim is raised for the first time on appeal. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). AFFIRMED. 2 13-56304

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.