Paul Anthony Davis v. Linda Sanders, No. 2:2009cv01259 - Document 4 (C.D. Cal. 2009)
Court Description: OPINION AND ORDER by Judge Dale S. Fischer (jy)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 PAUL ANTHONY DAVIS, 11 Petitioner, 12 vs. 13 LINDA SANDERS, WARDEN, 14 Respondent. 15 ) Case No. CV 09-1259-DSF(RC) ) ) ) ) OPINION AND ORDER ) ) ) ) ) ) 16 17 On February 17, 2009, petitioner Paul Anthony Davis, a federal 18 inmate confined in this judicial district, filed a purported petition 19 for writ of habeas corpus under 28 U.S.C. § 2241, challenging his 20 sentence of 322 months imprisonment for being convicted of the 21 offenses of felon in possession of a firearm, in violation of 18 22 U.S.C. §§ 922(g)(1) and 924(e), and the use and carrying of a firearm 23 during the commission of a drug trafficking crime, in violation of 18 24 U.S.C. § 924(c)(1). 25 juvenile priors to enhance [petitioner s sentence] is in violation of 26 the Tenth Amendment and caused [petitioner] to be actually innocent of 27 the sentence. 28 trial court applied an unconstitutional enhancement statute, see 18 Specifically, petitioner claims that the use of Petition at 5. The petitioner, thus, claims, the 1 U.S.C. § 924(e)(2)(C). Id. at 6. 2 3 BACKGROUND 4 On July 16, 1993, in United States District Court for the 5 Southern District of California case no. CR 92-0687-R,1 a jury 6 convicted petitioner of being a felon in possession of a firearm, in 7 violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and the use and 8 carrying of a firearm during the commission of a drug trafficking 9 crime, in violation of 18 U.S.C. § 924(c)(1), and petitioner was 10 subsequently sentenced to 322 months in prison. The Ninth Circuit 11 Court of Appeals affirmed petitioner s convictions and sentence in an 12 unpublished decision filed January 10, 1997, and the Supreme Court 13 denied certiorari on November 10, 1997. 14 F.3d 409 (9th Cir.) (unpublished decision), cert. denied, 522 U.S. 976 15 (1997). United States v. Davis, 106 16 17 On or about June 23, 1998, petitioner filed a motion to vacate, 18 set aside, or correct his sentence under 28 U.S.C. § 2255 in the 19 District Court for the Southern District of California, and the 20 district court dismissed the motion as untimely on September 14, 1999. 21 The petitioner appealed the judgment to the Ninth Circuit, which, on 22 July 25, 2000, vacated the judgment and remanded the motion to the 23 district court for consideration of the merits. 24 petitioner filed a supplemental motion to vacate his conviction and 25 sentence under Section 2255, claiming, among other things, that his Following remand, 26 1 27 28 The Court takes judicial notice, pursuant to Fed. R. Evid. 201, of the docket sheet and related documents in Southern District of California case no. CR 92-0687-R. 2 1 sentence violated the Fifth and Sixth Amendments under Apprendi v. New 2 Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), 3 because the trial court enhanced his sentence under the Armed Career 4 Criminal Act ( ACCA ), 18 U.S.C. § 924(e)(1), even though his prior 5 crimes were not charged in the indictment and the jury was not 6 instructed it must find the prior convictions were proven beyond a 7 reasonable doubt. 8 Apprendi undermined Almendarez-Torres v. United States, 523 U.S. 224, 9 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), which, he argued, supported In his supplemental motion, petitioner claimed 10 his claim. On June 21, 2001, the district court denied petitioner s 11 Section 2255 motion on the merits. 12 13 On January 16, 2003, the Ninth Circuit affirmed the trial court s 14 denial of petitioner s Section 2255 motion, and the Supreme Court 15 denied certiorari on May 19, 2003. 16 Fed. Appx. 176 (9th Cir.) (unpublished decision), cert. denied, 538 17 U.S. 1052 (2003). 18 held there were no Supreme Court cases support[ing] [petitioner s] 19 argument that the ACCA is a separate crime with elements that must be 20 proven beyond a reasonable doubt rather than a sentencing enhancement 21 that need not be presented to the jury. United States v. Davis, 59 In denying petitioner s appeal, the Ninth Circuit Id. at 178. 22 23 24 DISCUSSION The Court, having reviewed the pending petition, has determined 25 it is a second or successive motion to vacate, set aside or correct 26 petitioner s sentence under 28 U.S.C. § 2255, rather than a habeas 27 corpus petition under 28 U.S.C. § 2241. 28 204 F.3d 861, 865 (9th Cir. 2000) (per curiam) ( [A] court must first 3 See Hernandez v. Campbell, 1 determine whether a habeas petition is filed pursuant to § 2241 or 2 § 2255 before proceeding to any other issue. ). 3 determination, the Court has considered whether the pending action 4 comes within Section 2255 s savings clause, and, for the reasons 5 discussed below, has determined it does not. In making this 6 7 The general rule is that a motion under 28 U.S.C. § 2255 is the 8 exclusive means by which a federal prisoner may test the legality of 9 his detention, and that restrictions on the availability of a § 2255 10 motion cannot be avoided through a petition under 28 U.S.C. § 2241. 11 Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citations 12 omitted), cert. denied, 549 U.S. 1313 (2007); Harrison v. Ollison, 13 519 F.3d 952, 955-56 (9th Cir.), cert. denied, 129 S. Ct. 254 (2008). 14 By contrast, a habeas corpus petition under 28 U.S.C. § 2241 is the 15 appropriate mechanism by which a federal prisoner challenges the 16 manner, location or conditions of the execution of his sentence. 17 Hernandez, 204 F.3d at 864. 18 vacate, set aside or correct a sentence under Section 2255 and a 19 habeas corpus petition under Section 2241 affects not only the type of 20 relief generally available, but also whether a particular district 21 court has jurisdiction to hear the request. 22 motions must be heard in the district court in which the federal 23 prisoner was convicted and sentenced, whereas habeas corpus petitions 24 under Section 2241 may be heard in the district court in which the 25 federal prisoner is confined. The distinction between a motion to Id. at 865. Section 2255 Id. 26 27 Although petitioner is currently confined in the Central District 28 of California, and this Court has jurisdiction to hear a habeas corpus 4 1 petition under Section 2241, the claim petitioner raises in this 2 action directly challenges the legality of his sentence; thus, 3 petitioner s claim is presumptively cognizable only in a Section 2255 4 motion to vacate sentence, which must be filed in the District Court 5 for the Southern District of California. 6 has an escape hatch or savings clause, which provides that [a] 7 federal prisoner may file a habeas petition under § 2241 to challenge 8 the legality of a sentence when the prisoner s remedy under § 2255 is 9 inadequate or ineffective to test the legality of his detention. Nevertheless, Section 2255 10 Harrison, 519 F.3d at 956; Stephens, 464 F.3d at 897. 11 has the burden of demonstrating Section 2255 is inadequate or 12 ineffective. 13 1963). The petitioner Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 14 15 The inadequate or ineffective exception is narrow[,] Ivy v. 16 Pontesso, 328 F.3d 1057, 1059 (9th Cir.), cert. denied, 540 U.S. 1051 17 (2003); United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997), and 18 the general rule . . . is that the ban on unauthorized second or 19 successive petitions does not per se make a § 2255 inadequate or 20 ineffective. 21 223 F.3d 950, 953 (9th Cir. 2000) (quoting § 2255)); see also Ivy, 22 328 F.3d at 1059 ( § 2255 s remedy is not inadequate or ineffective 23 merely because § 2255 s gatekeeping provisions prevent the petitioner 24 from filing a second or successive petition. . . . (citation 25 omitted)). 26 § 2255 when a petitioner (1) makes a claim of actual innocence, and 27 (2) has not had an unobstructed procedural shot at presenting that 28 claim. Stephens, 464 F.3d at 898 (quoting Lorentsen v. Hood, However, a motion meets the escape hatch criteria of Harrison, 519 F.3d at 959 (citation omitted); Stephens, 5 1 464 F.3d at 898. To establish actual innocence, petitioner must 2 demonstrate that, in light of all the evidence, it is more likely than 3 not that no reasonable juror would have convicted him. 4 464 F.3d at 898 (citation omitted). 5 petitioner had an unobstructed procedural shot to pursue his claim, 6 [the Court asks] whether petitioner s claim did not become available 7 until after a federal court decision. 8 (quoting Stephens, 464 F.3d at 898). 9 consider: (1) whether the legal basis for petitioner s claim did not 10 arise until after he had exhausted his direct appeal and first § 2255 11 motion; and (2) whether the law changed in any way relevant to 12 petitioner s claim after that first § 2255 motion. 13 519 F.3d at 960 (quoting Ivy, 328 F.3d at 1060-61). Stephens, To determine whether a Harrison, 519 F.3d at 960 That is, the Court must Harrison, 14 15 Here, petitioner s claim of actual innocence challenges his 16 sentence, rather than the offenses of which petitioner was convicted, 17 and is purportedly based on Almendarez-Torres. 18 However, petitioner cannot show that he did not have an unobstructed 19 procedural shot at presenting a claim under Almendarez-Torres. 20 contrary, both petitioner and the Government extensively briefed the 21 applicability of Almendarez-Torres in petitioner s Section 2255 22 motion. 23 in any manner relevant to petitioner s claim since his Section 2255 24 motion. 25 an unobstructed procedural shot at presenting his claim, and thus 26 cannot qualify for the escape hatch. 27 (citation omitted). 28 // See Petition at 1-2. To the Moreover, petitioner has not shown that the law has changed Therefore, petitioner cannot establish that he has not had 6 Harrison, 519 F.3d at 898 1 Moreover, a claim of sentencing error is not, by itself, a claim 2 of actual innocence. Stephens, 464 F.3d at 899. 3 claim challenges petitioner s sentence, rather than his conviction, 4 petitioner cannot show it is more likely than not that no reasonable 5 juror would have convicted him. 6 United States, 416 F.3d 424, 427 (5th Cir. 2005) ( [B]ecause 7 [petitioner] does not attack his conviction and his claim challenges 8 only the validity of his sentence [petitioner s] § 2241 petition does 9 not fall within the savings clause of § 2255. . . . ); Talbott v. Rather, since the Id. at 898; see also Padilla v. 10 Holencik, 2009 WL 322107, *7-8 (C.D. Cal.) (federal habeas 11 petitioner s claim of actually innocent of being an armed career 12 criminal fails to show Section 2255 was inadequate or ineffective 13 since petitioner challenged only legality of his sentence, which does 14 not show actual innocence); Coles v. United States, 177 F. Supp. 2d 15 710, 713 (N.D. Ohio 2001) ( Petitioner s claim of innocence relates to 16 a sentencing factor - the ACCA enhanced sentence penalty - as opposed 17 to the underlying, substantive crime, for which Petitioner is serving 18 his current sentence. 19 actual innocence does not fall within the meaning of the savings 20 clause of § 2255. . . . 21 that the remedy afforded pursuant to § 2255 is inadequate or 22 ineffective, and, hence, is not entitled to relief under § 2241. 23 (citation omitted)). Consequently, Petitioner s § 2241 claim of Therefore, Petitioner has not demonstrated 24 25 For all these reasons, this Court finds the pending action is a 26 motion to vacate sentence under Section 2255, and not a habeas corpus 27 petition under Section 2241, and, as such, this Court does not have 28 jurisdiction to consider petitioner s Section 2255 motion. 7 See 28 1 U.S.C. § 2255(a) ( A prisoner in custody under sentence of a court 2 established by Act of Congress claiming the right to be released upon 3 the ground that the sentence was imposed in violation of the 4 Constitution or laws of the United States, or that the court was 5 without jurisdiction to impose such sentence, or that the sentence was 6 in excess of the maximum authorized by law, or is otherwise subject to 7 collateral attack, may move the court which imposed the sentence to 8 vacate, set aside or correct the sentence. (emphasis added)). 9 this action should be summarily dismissed for lack of jurisdiction 10 Thus, under Local Rule 72-3.2.2 11 12 ORDER 13 IT IS HEREBY ORDERED that the pending action be construed as a 14 motion to vacate, set aside or correct the sentence under 28 U.S.C. 15 § 2255 and, as such, Judgment shall be entered summarily dismissing 16 the motion for lack of jurisdiction. 17 18 The Clerk of Court is ordered to serve this Opinion and Order and 19 Judgment on petitioner. 20 DATE: March 6, 2009 DALE S. FISCHER UNITED STATES DISTRICT JUDGE 21 22 23 24 PRESENTED BY: DATE: March 4, 2009 /S/ Rosalyn M. Chapman ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 25 2 26 27 28 Local Rule 72-3.2 provides that if it plainly appears from the face of the [habeas] petition and any exhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District Judge. Local Rule 72-3.2. R&R-MDO\09-1259.mdo - 3/4/09 8
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