(HC)Burnley v. Copenhaver, No. 1:2014cv01784 - Document 6 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case; Objections Deadline: Thirty (30) Days signed by Magistrate Judge Barbara A. McAuliffe on 12/10/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/12/2015. (Sant Agata, S)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 WALTER R. BURNLEY, Case No. 1:14-cv-01784-LJO-BAM-HC 12 FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) 13 Petitioner, v. 14 15 P. COPENHAVER, Warden, 16 Respondent. 17 18 19 20 21 22 23 24 25 26 27 28 FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on November 14, 2014. I. Screening the Petition The Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. ' 2241. 1(b). Habeas Rule Habeas Rule 4 requires the Court to make a preliminary review 1 1 of each petition for writ of habeas corpus. The Court must 2 summarily dismiss a petition "[i]f it plainly appears from the 3 petition and any attached exhibits that the petitioner is not 4 entitled to relief in the district court....@ Habeas Rule 4; 5 O=Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 6 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Habeas 7 Rule 2(c) requires that a petition 1) specify all grounds of relief 8 available to the Petitioner; 2) state the facts supporting each 9 ground; and 3) state the relief requested. Notice pleading is not 10 sufficient; rather, the petition must state facts that point to a 11 real possibility of constitutional error. Rule 4, Advisory 12 Committee Notes, 1976 Adoption; O=Bremski v. Maass, 915 F.2d at 420 13 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). 14 Allegations in a petition that are vague, conclusory, patently 15 frivolous or false, or palpably incredible are subject to summary 16 dismissal. 17 Hendricks v. Vasquez, 908 F.2d at 491. Further, the Court may dismiss a petition for writ of habeas 18 corpus either on its own motion under Habeas Rule 4, pursuant to the 19 20 21 22 respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 23 2001). 24 A petition for habeas corpus should not be dismissed without 25 leave to amend unless it appears that no tenable claim for relief 26 can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 27 13, 14 (9th Cir. 1971). 28 Here, Petitioner challenges his sentence of 262 years that was 2 1 imposed in 2007 in the United States District Court for the Western 2 District of Wisconsin. His sentence included time imposed for prior 3 state convictions of crimes of violence. Petitioner argues that his 4 prior state court convictions were not crimes of violence pursuant 5 to 18 U.S.C. § 924(e), and thus he is actually innocent of the facts 6 that warranted an enhanced sentence. 7 II. Background 8 Petitioner alleges that on November 21, 2006, in the United 9 States District Court for the Western District of Wisconsin, he was 10 convicted at a jury trial of four counts of bank robbery by 11 intimidation in violation of 18 U.S.C. § 2113(a) for robbing 12 multiple banks in April and May 2006. (Pet., doc. 1, 1-2.) On 13 February 7, 2007, Petitioner was sentenced to 262 months in prison. 14 In July 2008, the Court of Appeals for the Seventh Circuit affirmed 15 his conviction in the course of a direct appeal in which Petitioner 16 raised only the issue of the sufficiency of the evidence of 17 intimidation. On December 2009, the sentencing court denied 18 Petitioner’s first motion pursuant to § 2255. On July 18, 2014, the 19 Seventh Circuit denied Petitioner’s motion to file a successive 20 § 2255 motion, which Petitioner sought in order to raise a challenge 21 to his 2007 sentence on the ground that pursuant to pursuant to 22 Descamps v. United States, 133 S.Ct. 2276 (2013), his prior 23 Wisconsin state convictions of battery and reckless injury should 24 not have been considered crimes of violence under United States 25 Sentencing Guidleines 4(B)1.1(B). (Id. at 2.) 26 III. Subject Matter Jurisdiction under 28 U.S.C. § 2241 27 A court will not infer allegations supporting federal 28 jurisdiction; a federal court is presumed to lack jurisdiction in a 3 1 particular case unless the contrary affirmatively appears, and thus 2 federal subject matter jurisdiction must always be affirmatively 3 alleged. Fed. R. Civ. P. 8(a); Stock West, Inc. v. Confederated 4 Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 5 1989). When a federal court concludes that it lacks subject matter 6 jurisdiction, the court must dismiss the action. Arbaugh v. Y&H 7 Corp., 546 U.S. 500, 514 (2006); Moore v. Maricopa County Sheriff=s 8 Office, 657 F.3d 890, 894 (9th Cir. 2011). 9 A federal prisoner who wishes to challenge his conviction or 10 sentence on the grounds it was imposed in violation of the 11 Constitution or laws of the United States or was otherwise subject 12 to collateral attack must do so by way of a motion to vacate, set 13 aside, or correct the sentence under 28 U.S.C. § 2255. 28 U.S.C. 14 § 2255; Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); 15 Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). In such 16 cases, the motion must be filed in the district where the defendant 17 was sentenced because only the sentencing court has jurisdiction. 18 Hernandez v. Campbell, 204 F.3d at 864; Tripati, 843 F.2d at 1163. 19 Generally, a prisoner may not collaterally attack a federal 20 conviction or sentence by way of a petition for a writ of habeas 21 corpus pursuant to 28 U.S.C. § 2241. 22 at 897; 23 Stephens v. Herrera, 464 F.3d Tripati, 843 F.2d at 1162. In contrast, a federal prisoner challenging the manner, 24 location, or conditions of that sentence's execution must bring a 25 petition for writ of habeas corpus under 28 U.S.C. § 2241. Brown v. 26 United States, 610 F.2d 672, 677 (9th Cir. 1990). 27 Here, Petitioner’s claim is essentially a claim of an 28 unauthorized or excessive sentence. 4 Because Petitioner challenges 1 the underlying judgment and not errors in the administration of his 2 sentence, the petition appears to come within the scope of 28 U.S.C. 3 § 2255(a), which states that such challenges are to be brought in a 4 motion pursuant to § 2255 to vacate, set aside, or correct the 5 sentence. 6 7 A. Inadequate or Ineffective Remedy Petitioner contends that he is entitled to proceed pursuant to 8 28 U.S.C. § 2241 because § 2255 is inadequate and ineffective due to 9 his actual innocence of the sentencing enhancement and his lack of 10 an unobstructed procedural shot at presenting his claim. 11 Title 28 U.S.C. § 2255(e) provides as follows: 12 An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. 13 14 15 16 17 28 U.S.C. § 2255(e). 18 A federal prisoner authorized to seek relief under § 2255 may 19 seek relief under § 2241 only if he can show that the remedy 20 21 available under § 2255 is "inadequate or ineffective to test the 22 legality of his detention." United States v. Pirro, 104 F.3d 297, 23 299 (9th Cir. 1997) (quoting § 2255). 24 25 26 27 Although there is little guidance on when § 2255 is an inadequate or ineffective remedy, in the Ninth Circuit it is recognized that the exception is narrow. Id.; Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (dismissal 28 of a successive motion pursuant to § 2255 did not render such motion 5 1 procedure an ineffective or inadequate remedy so as to authorize a 2 federal prisoner to seek habeas relief); Aronson v. May, 85 S.Ct. 3, 3 4 5 6 5 (1964) (denial of a prior § 2255 motion is insufficient to render § 2255 inadequate); Tripati, 843 F.2d at 1162-63 (noting that a petitioner's fears of bias or unequal treatment do not render a 7 § 2255 petition inadequate); see, United States v. Valdez-Pacheco, 8 237 F.3d 1077 (9th Cir. 2001) (procedural requirements of § 2255 may 9 not be circumvented by filing a petition for writ of audita querela 10 11 12 13 pursuant to the All Writs Act, 28 U.S.C. § 1651). The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). If a 14 petitioner proceeding pursuant to § 2241 fails to meet his burden to 15 demonstrate that the § 2255 remedy is inadequate or ineffective, 16 then the § 2241 petition will be dismissed for lack of jurisdiction. 17 Ivy v. Pontesso, 328 F.3d 1057, 1061 (9th Cir. 2003). 18 The AEDPA limits the circumstances under which a petitioner may 19 20 file a second or successive motion pursuant to § 2255: 21 22 23 24 25 26 27 A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain— 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 2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 28 U.S.C. § 2255(h). 6 1 The fact that Petitioner brought an earlier motion pursuant to 2 § 2255, which was denied, is insufficient by itself to render the 3 § 2255 remedy inadequate. Aronson v. May, 85 S.Ct. at 5. Likewise, 4 the denial of Petitioner’s motion for leave to file a successive 5 § 2255 motion does not render the remedy under § 2255 inadequate or 6 ineffective pursuant to 28 U.S.C. § 2255(e) and (h). 7 Reno, 185 F.3d at 1055. See, Moore v. It is established that the authority of 8 federal courts to grant habeas relief under § 2241 is limited by 9 § 2255. 10 11 Tripati v. Henman, 843 F.2d at 1162. B. Actual Innocence Petitioner argues that his remedy pursuant to § 2255 is 12 inadequate because he is actually innocent of the sentencing 13 enhancement. 14 Although authority in this circuit is limited, it is recognized 15 that the § 2255 remedy is inadequate and ineffective, and thus a 16 petition pursuant to § 2241 is available, when the petitioner 17 1) claims to be factually innocent of the crime for which he has 18 been convicted, and 2) has never an “unobstructed procedural shot” 19 at presenting the claim. 20 21 1. Stephens v. Herrera, 464 F.3d at 898. Factual Innocence A claim of actual innocence for purposes of the “escape hatch” 22 of § 2255 is assessed by the test stated in Bousley v. United 23 States, 523 U.S. 614, 623 (1998), which in turn requires that the 24 petitioner demonstrate that in light of all the evidence, it is more 25 likely than not that no reasonable juror would have convicted him. 26 Stephens, 464 F.3d at 898. 27 Here, Petitioner does not allege facts that show his innocence 28 of the underlying substantive offenses, but rather challenges an 7 1 element or elements of a sentencing enhancement. His claim fails to 2 show that it would be more likely than not that he could have 3 avoided a conviction altogether. See Marrero v. Ives, 682 F.3d 4 1190, 1193-94 (9th Cir. 2012), cert. den. 133 S.Ct. 1264 (2013) 5 (holding that a purely legal claim of having been wrongfully 6 sentenced as a career offender under the Sentencing Guidelines does 7 not constitute a cognizable assertion of actual innocence for 8 purposes of invoking § 2255's savings clause). 9 is foreclosed by Marrero v. Ives. Petitioner’s claim See Green v. Thomas, no. 12- 10 35013, 485 Fed.Appx. 888, *1 (9th Cir. Oct. 16, 2012) (unpublished) 11 (holding that a claim that one is actually innocent of being a 12 career offender under U.S.S.G. § 4B1.1 and therefore should be 13 allowed to proceed with his section 2241 petition under the “escape 14 hatch” of 28 U.S.C. § 2255(e) is foreclosed by Marrero, and that 15 dismissal of such a petition is appropriate). 16 In summary, Petitioner has failed to establish factual 17 innocence. Therefore, Petitioner cannot proceed under the so- 18 called escape hatch because he has not shown that the § 2255 remedy 19 is inadequate or ineffective. Accordingly, it will be recommended 20 that the petition for writ of habeas corpus be dismissed for lack of 21 subject matter jurisdiction. 22 IV. Certificate of Appealability 23 Unless a circuit justice or judge issues a certificate of 24 appealability, an appeal may not be taken to the Court of Appeals 25 from the final order in a habeas proceeding in which the detention 26 complained of arises out of process issued by a state court. 28 27 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 28 (2003). A district court must issue or deny a certificate of 8 1 appealability when it enters a final order adverse to the applicant. 2 Habeas Rule 11(a). 3 A certificate of appealability may issue only if the applicant 4 makes a substantial showing of the denial of a constitutional right. 5 ' 2253(c)(2). Under this standard, a petitioner must show that 6 reasonable jurists could debate whether the petition should have 7 been resolved in a different manner or that the issues presented 8 were adequate to deserve encouragement to proceed further. Miller- 9 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 10 473, 484 (2000)). A certificate should issue if the Petitioner 11 shows that jurists of reason would find it debatable whether: (1) 12 the petition states a valid claim of the denial of a constitutional 13 right, and (2) the district court was correct in any procedural 14 ruling. 15 Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the 16 claims in the habeas petition, generally assesses their merits, and 17 determines whether the resolution was debatable among jurists of 18 reason or wrong. Id. An applicant must show more than an absence 19 of frivolity or the existence of mere good faith; however, the 20 applicant need not show that the appeal will succeed. Miller-El v. 21 Cockrell, 537 U.S. at 338. 22 Here, it does not appear that reasonable jurists could debate 23 whether the petition should have been resolved in a different 24 manner. Petitioner has not made a substantial showing of the denial 25 of a constitutional right. Accordingly, it will be recommended that 26 the Court decline to issue a certificate of appealablity. 27 28 9 1 V. Recommendations 2 In accordance with the foregoing analysis, it is RECOMMENDED 3 that: 1) The petition for writ of habeas corpus be DISMISSED for lack 4 5 of subject matter jurisdiction; and 6 2) The Court DECLINE to issue a certificate of appealability; 7 and 3) The Clerk be DIRECTED to close the case. 8 These findings and recommendations are submitted to the United 9 States District Court Judge assigned to the case, pursuant to the 10 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 11 Rules of Practice for the United States District Court, Eastern 12 District of California. Within thirty (30) days after being served 13 with a copy, any party may file written objections with the Court 14 and serve a copy on all parties. Such a document should be 15 captioned AObjections to Magistrate Judge=s Findings and 16 Recommendations.@ Replies to the objections shall be served and 17 filed within fourteen (14) days (plus three (3) days if served by 18 mail) after service of the objections. The Court will then review 19 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 20 The parties are advised that failure to file objections within the 21 specified time may result in the waiver of rights on appeal. 22 Wilkerson v. Wheeler, - F.3d -, -, no. 11-17911, 2014 WL 6435497, *3 23 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 24 1394 (9th Cir. 1991)). 25 IT IS SO ORDERED. 26 27 Dated: /s/ Barbara December 10, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 28 10
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