(HC) Schreane v. Lake, No. 1:2018cv00732 - Document 3 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to dismiss 1 Petition for lack of habeas jurisdiction; Clerk of Court to assign district judge signed by Magistrate Judge Sheila K. Oberto on 6/5/2018. Case randomly assigned to District Judge Anthony W. Ishii. Referred to Judge Anthony W. Ishii; Objections to F&R due by 7/9/2018. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CLARENCE D. SCHREANE, 12 No. 1:18-cv-00732-SKO HC Petitioner, 13 v. 14 S. LAKE, 15 FINDINGS AND RECEOMMENDATION TO DISMISS HABEAS PETITION FOR LACK OF HABEAS JURISDICTION Respondent. 16 COURT CLERK TO ASSIGN DISTRICT JUDGE (Doc. 1) 17 On May 29, 2018, Petitioner Clarence D. Schreane, a federal prisoner proceeding pro se, 18 19 filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is currently 20 incarcerated at the United States Penitentiary, Atwater (“USP Atwater”), where he is serving a 21 sentence of 327 months’ imprisonment. In 2001, Petitioner was convicted in the Eastern District 22 of Tennessee of being a felon in possession of a firearm in violation of 18 U.S.C. §§922(g)(1), 23 924(e). 24 Petitioner alleges ineffective assistance of counsel and challenges his conviction based on 25 26 the Interstate Agreement on Detainer Act. (Doc. 1 at 7.) Petitioner filed a motion to dismiss the 27 indictment with his petition for writ of habeas corpus. 28 // 1 1 2 3 I. DISCUSSION A federal prisoner who seeks to challenge the validity or constitutionality of his federal conviction or sentence must do so by filing a motion to vacate, set aside, or correct the sentence 4 under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1161-62 (9th Cir. 1988); Stephens v. 5 6 Herrera, 464 F.3d 895, 897 (9th Cir. 2006). In such cases, only the sentencing court has 7 jurisdiction. Tripati, 843 F.2d at 1163. Petitioner challenges the validity and constitutionality of 8 the sentence imposed by the Eastern District of Tennessee, rather than the administration of his 9 sentence at USP Atwater. As such, proper procedure required him to file a motion pursuant to 10 11 § 2255 in the Eastern District of Tennessee rather than a petition pursuant to § 2241 in this Court. Petitioner does not explicitly address this issue. 12 13 14 A prisoner may not collaterally attack a federal conviction or sentence using a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, as Petitioner does in this case. Tripati, 843 15 F.2d at 1162. A prisoner challenging the manner, location, or conditions of the execution of his 16 sentence may bring a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the district in 17 which he is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65 18 19 (9th Cir. 2000). A motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention. Stephens, 464 F.3d at 897. Restrictions on the 20 21 availability of a § 2255 motion cannot be avoided by filing a petition under 28 U.S.C. § 2241. Id. 22 If a federal prisoner can demonstrate that the remedy available under § 2255 is 23 "inadequate or ineffective to test the validity of his detention," however, he may nonetheless seek 24 relief under § 2241. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting 28 U.S.C. 25 § 2255); Hernandez, 204 F.3d at 864-65. The exception is very narrow. Ivy v. Pontesso, 328 26 F.3d 1057, 1059 (9th Cir. 2003). The remedy under § 2255 usually will not be deemed inadequate 27 or ineffective merely because a prior § 2255 motion was denied or because a remedy under 28 2 1 § 2255 is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964); Tripati, 843 F.2d at 2 1162-63; Williams v. Heritage, 250 F.2d 390, 390 (9th Cir. 1957); Hildebrandt v. Swope, 229 F.2d 3 582, 583 (9th Cir. 1956). 4 Section 2255 provides an inadequate and ineffective remedy, thereby permitting a 5 6 petitioner to proceed under § 2241, when (1) the petitioner makes an claim of actual innocence 7 and (2) has never had an unobstructed procedural shot at presenting the claim. Stephens, 464 8 F.3d at 898. The burden is on the petitioner to show that the remedy is inadequate or ineffective. 9 Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 10 11 The petition does not set forth a claim of actual innocence. In the Ninth Circuit, a claim of actual innocence for purposes of the § 2255 savings clause is tested using the standard 12 13 14 articulated by the U.S. Supreme Court in Bousley v. United States, 523 U.S. 614 (1998). Stephens, 464 U.S. at 898. "To establish actual innocence, petitioner must demonstrate that, in 15 light of all the evidence, it is more likely than not that no reasonable juror would have convicted 16 him." Bousley, 523 U.S. at 623 (internal quotation marks omitted). The petitioner bears the 17 burden of proof. Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000). 18 19 Here, Petitioner does not assert that he was factually innocent of the crime of which he was convicted, and challenges only his sentence based on Interstate Agreement on Detainer Act. 20 21 The savings clause requires him to prove that he is actually innocent of the crimes for which he 22 was convicted—not that the sentence was erroneously imposed. See Ivy, 328 F.3d at 1060; 23 Lorentsen, 223 F.3d at 954. As a result, the § 2241 petition now before the Court does not fit 24 within the exception of the general bar against using § 2241 to collaterally attack a conviction or 25 sentence imposed by a federal court. Lorentsen, 223 F.3d at 954. See also Harrison v. Ollison, 26 519 F.3d 952, 959 (9th Cir. 2008); Stephens, 464 F.3d at 898-99. 27 // 28 3 1 Petitioner has not demonstrated that § 2255 constitutes an inadequate or ineffective 2 remedy for raising his claims, because he did not make a claim for actual innocence or 3 demonstrate that he was procedurally barred from bringing his claim. Therefore, § 2241 is not 4 the proper statute for raising Petitioner's claims, and the undersigned recommends the petition be 5 6 7 dismissed for lack of jurisdiction. II. The undersigned recommends that the Court dismiss the Petition for writ of habeas corpus 8 9 without prejudice and that the Court decline to issue a certificate of appealability. 10 11 CONCLUSION AND RECOMMENDATION These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty 12 13 14 (30) days after being served with these Findings and Recommendations, either party may file written objections with the Court. The document should be captioned AObjections to Magistrate 15 Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and 16 filed within fourteen (14) days after service of the objections. The parties are advised that failure 17 to file objections within the specified time may constitute waiver of the right to appeal the District 18 Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. 19 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 The Court Clerk is hereby directed to assign a district judge to this action. 21 22 23 24 IT IS SO ORDERED. Dated: June 5, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 4 .

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