(HC) Johnson v. Salazar, No. 2:2017cv01310 - Document 16 (E.D. Cal. 2017)
Court Description: FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/15/2017 RECOMMENDING 12 that Respondents motion to dismiss be granted; and this action be dismissed without prejudice; Referred to Judge John A. Mendez; Objections due within 14 days after being served with these F & R's. (Reader, L)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE D. JOHNSON, 12 13 14 No. 2:17-cv-1310 JAM KJN P Petitioner, v. FINDINGS & RECOMMENDATIONS J. SALAZAR, 15 Respondent. 16 17 18 I. Introduction Petitioner is a federal prisoner, proceeding without counsel. Petitioner filed a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that he is actually innocent as a 20 matter of law, based on new federal regulatory law. (ECF No. 1 at 6-7, 10.) Petitioner contends 21 that the government was required to obtain a court order prior to conducting the criminal 22 investigation of petitioner. (ECF No. 1 at 14.) Respondent’s motion to dismiss for lack of 23 subject matter jurisdiction is before the court. As set forth more fully below, the motion to 24 dismiss should be granted, and the petition dismissed without prejudice. 25 II. Background 26 On May 4, 2010, a superseding indictment was issued by the Grand Jury in United States 27 v. Johnson, Case No. CR 09-5703 RBL (W.D. Wash.). (ECF No. 12-1 at 2-29.) Along with his 28 mother, petitioner was charged with 35 counts of health care fraud, 10 counts relating to filing a 1 1 false income tax return, and 13 counts of illegal distribution of controlled substances. (Id.) On 2 June 24, 2010, counsel for petitioner filed a motion to dismiss the superseding indictment. (ECF 3 No. 12-1 at 31-38.) The reply was filed on July 22, 2010, along with a motion to suppress under 4 42 CFR 2.1 (3) and 18 U.S.C. § 2510. (ECF No. 12-1 at 40-45.) 5 Following an evidentiary hearing in Case No. CR 09-5703 RBL, on June 21, 2011, the 6 district court issued an order rendering factual findings and denying various motions. 7 Specifically, the district court found: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 While Dr. Johnson was listed as a physician certified to provide Buprenorphine treatment, the Court finds that this alone is insufficient to find that Dr. Johnson held himself out as providing substance abuse services. Dr. Johnson was not listed as a substance abuse treatment program by the United States Department of Health and Human Services. Dkt. #130 (Hinckley Decl.) ¶16, Ex. B at 21. There were no visible signs referring to drug and alcohol abuse programs or counseling at Dr. Johnson’s clinics.[fn 4] Id. ¶¶12, 14; Dkt. #133 (Lynch Decl.) ¶¶2, 3, 16. Rather, the clinics were identified as family practice clinics. Id. According to the Washington State Department of Health’s Medical Quality Assurance Commission, Dr. Johnson was designated as a Family Practice Medical Doctor. Dkt. #107-2 (Portillo Affidavit) ¶6. There is no evidence that Dr. Johnson advertised or marketed himself as a substance abuse treatment program. Rather, the evidence suggests that the substance abuse patients treated by Dr. Johnson were current patients who had tested “dirty” in Ameritox urinalysis screenings. Dkt. #130 (Hinckley Decl.) ¶13. During oral argument, the government conceded that, with respect to the 86 patients, Dr. Johnson was a treatment program. However, the evidence presented to the Court demonstrates that Dr. Johnson did not hold himself out as a substance abuse treatment program, despite the fact that he actually treated 86 patients. [FN 4: During the evidentiary hearing, Agents Lynch and Hinckley testified that they did not see any signs or brochures referring to substance abuse treatment programs, but that there were areas of the clinics they did not see. Nevertheless, defendants have not offered any evidence that there were signs or brochures in any of the clinics referring to substance abuse treatment programs.] (ECF No. 12-1 at 52-53.) The court concluded that petitioner did not hold himself out as a substance abuse 26 treatment program under 42 C.F.R. § 2.11. (ECF No. 12-1 at 53.) The court also found that 27 “Agents Hinckley and Lynch did not ‘enroll’ in a substance abuse treatment program, and 28 therefore do not come within the meaning of ‘undercover agent’ for purposes of the regulations.” 2 1 (ECF No. 12-1 at 53.) Thus, the court found that “the government did not need a court order 2 prior to beginning their undercover investigation, including using audio and video surveillance, 3 and the government properly obtained a search warrant to seize the patient records.” (Id., citing 4 see 42 C.F.R. § 2.67.) The court denied petitioner’s motion to dismiss the indictment under Fed. 5 R. Crim. P. 12(b)(3)(c) and 18 U.S.C. § 3504, and the motion to suppress evidence under 42 6 C.F.R. § 2.1. (ECF No. 12-1 at 53.) 7 On November 10, 2011, a jury convicted petitioner on 57 out of 58 counts in Case No. CR 8 09-5703 RBL. He was acquitted of count five, health care fraud for a claim for non-billable 9 services to Medicaid for patient R.L. for approximate date of service May 22, 2008. (ECF No. 10 11 12-1 at 63-70.) On January 10, 2012, petitioner filed in Case No. CR 09-5703 RBL, pro se motions to 12 vacate the conviction and to dismiss the superseding indictment for lack of subject matter 13 jurisdiction, renewing his claim that the government was required to obtain a court order to 14 investigate and prosecute him. (ECF No. 12-1 at 72-83.) On February 2, 2012, the court denied 15 the motions, noting that “[t]hese motions are recycled,” and “[n]o new information is presented.” 16 (ECF No. 12-1 at 85.) 17 Petitioner filed an appeal in the Court of Appeals for the Ninth Circuit. In his appellate 18 brief and his reply brief, petitioner again argued, inter alia, that the criminal investigation was 19 void under 42 C.F.R. § 2.66 because the government failed to obtain a substance abuse treatment 20 court order prior to the undercover investigation, and challenged the definition of “program,” as 21 applied by the district court. (ECF No. 12-1 at 87-106.) 22 On September 10, 2013, the Ninth Circuit affirmed the district court’s ruling. United 23 States v. Johnson, 540 F. App’x 573 (9th Cir. 2013). In addressing petitioner’s appeal, the Ninth 24 Circuit stated: 25 26 27 28 Even were we to consider the waiver notification form, it would not convince us that the district court erred in concluding that Dr. Johnson was not a drug abuse treatment program. A drug abuse treatment program is an individual or entity that not only provides drug abuse treatment, but also “holds itself out as providing” treatment. See 42 C.F.R. § 2.11. The district court’s conclusion was based on a finding that Dr. Johnson did not hold himself out as 3 1 2 3 4 5 6 providing drug abuse treatment, which we review for clear error. United States v. Hinojosa-Perez, 206 F.3d 832, 835 (9th Cir. 2000). Even had the district court considered the evidence at issue, which according to Dr. Johnson shows that he consented to be listed on a registry of doctors certified to provide a particular type of drug abuse treatment, this evidence does not make the district court’s finding “illogical, implausible, or without support in the record.” In re Retz, 606 F.3d 1189, 1196 (9th Cir. 2010). Taken together, the evidence in the record supported a finding that he did not advertise or market himself as a drug abuse treatment program, instead only providing treatment to current patients that tested positive for drug use. 7 8 United States v. Johnson, 540 F. App’x at 577. 9 On December 29, 2014, petitioner filed a motion to vacate, set aside or correct sentence in 10 the Western District of Washington, Case No. CR 09-5703 RBL. (ECF No. 12-1 at 108-70.) The 11 district court found that petitioner primarily claimed that he was the victim of ineffective 12 assistance of counsel, and that the government violated Brady by allegedly suppressing publicly 13 available documents petitioner believed were favorable to his case. (ECF No. 12-1 at 173-74.) 14 The district court articulated petitioner’s grounds for relief as follows: 15 (1) Johnson alleges that the District Court imposed a sentence without subject matter jurisdiction; 16 17 (2) The government violated his Fifth and Fourteenth Amendment due process rights by failing to disclose evidence allegedly favorable to Johnson under Brady; 18 19 (3) Ness provided constitutionally ineffective assistance of counsel, by performing poorly at the evidentiary hearing, and failing to gather necessary evidence; and 20 (4) He is actually innocent. 21 22 23 (ECF No. 12-1 at 174.) On June 11, 2015, the district court denied the § 2255 motion, finding that the court had 24 subject matter jurisdiction over the case. (ECF No. 12-1 at 171-80.) The court found that 25 petitioner failed to raise his Brady claims on appeal and therefore could only raise them if he 26 demonstrated “cause and actual prejudice” for such failure, which he did not. (ECF No. 12-1 at 27 175.) Moreover, because the court had already affirmed that a substance abuse treatment order 28 was not required prior to investigating petitioner, and petitioner “had a full and fair opportunity to 4 1 litigate this issue before the Ninth Circuit,” petitioner was “procedurally barred from using this 2 claim as a basis for a subsequent § 2255 motion.”1 (ECF No. 12-1 at 176.) The court also found 3 that petitioner did not actually claim he is innocent of the crimes for which he was convicted, but 4 rather claimed he could “demonstrate newly discovered evidence of material import that shows 5 alleged trial errors reaching constitutional dimensions probably resulted in the conviction of one 6 who is actually innocent.” (ECF No. 12-1 at 179, quoting petitioner.) The court found such 7 evidence “relates, again, to the claim that [petitioner] ‘held himself out’ as a substance abuse 8 treatment facility, which the Ninth Circuit has already addressed. This is not a claim of actual 9 innocence, and [petitioner] is procedurally barred from re-litigating it.” (ECF No. 12-1 at 179- 10 80.) The district court declined to issue a certificate of appealability. 11 On June 26, 2017, petitioner filed the instant petition under 28 U.S.C. § 2241. Petitioner 12 alleges actual innocence, and again claims that he should be considered a substance abuse 13 treatment program. (ECF No. 1 at 13-14.) He argues that because there were recent changes to 14 the federal regulations, he is actually innocent as a matter of law, and contends that such changes 15 apply retroactively to his case. (ECF No. 1 at 12-13.) 16 III. Motion to Dismiss 17 A party may move to dismiss a claim for lack of subject matter jurisdiction. Fed. R. Civ. 18 P. 12(b)(1). “When subject matter jurisdiction is challenged under Federal Rule of [Civil] 19 Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the 20 motion.” Tosco Corp. v. Communities for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001) 21 (abrogated on other grounds by Hertz Corp. v. Friend, 559 U.S. 77 1029 (2010)). “‘Unless the 22 23 24 25 26 27 28 1 The court also found that the DEA controlled substance registration certificate, dated November 2005, was not suppressed evidence because it belonged to petitioner and was in a basket of papers in his home, and was not posted in his office or used to advertise that his clinic was a substance abuse treatment facility. (ECF No. 12-1 at 176.) Moreover, the other various documents petitioner claimed were suppressed were actually publicly available documents which are not Brady material. (ECF No. 12-1 at 177.) The court also found that counsel’s performance was not deficient, and petitioner was not constructively denied counsel during the pretrial criminal proceedings. (ECF No. 12-1 at 178-79.) The trial judge was the same judge who ruled on the § 2255 motion. The certificate was found in his home sometime in 2014, long after petitioner was sentenced in 2012. 5 1 jurisdictional issue is inextricable from the merits of a case, the court may determine jurisdiction 2 on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1)[.]’” Robinson v. U.S., 586 3 F.3d 683, 685 (9th Cir. 2009) (internal citations omitted). If the court determines at any time that 4 it lacks subject matter jurisdiction “the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). 5 IV. Determining § 2241 Jurisdiction 6 A. General Standards 7 A federal court may not consider a habeas action over which it has no jurisdiction. 8 Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). “[T]o determine whether jurisdiction 9 is proper, a court must first determine whether a habeas petition is filed pursuant to § 2241 or 10 11 § 2255 before proceeding to any other issue.” Hernandez, 204 F.3d at 865. A federal prisoner may challenge the manner, location, or conditions of a sentence’s 12 execution by filing a petition pursuant to § 2241 in the “custodial court,” that is, the court of the 13 district in which he is incarcerated. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); 14 Hernandez, 204 F.3d at 864-65. If the prisoner challenges the legality of his conviction or 15 sentence as Petitioner does here, however, a motion under 28 U.S.C. § 2255, filed in the court of 16 conviction, is the exclusive means by which he may test the legality of his detention. Stephens, 17 464 F.3d at 897; Tripati v. Henman, 843 F.2d 1160, 1161-62 (9th Cir. 1988). Generally, a 18 prisoner may not collaterally attack a federal conviction or sentence by filing a petition for writ of 19 habeas corpus under 28 U.S.C. § 2241 in the custodial court, as petitioner seeks to do in this case. 20 Tripati, 843 F.2d at 1162. 21 B. The “Escape Hatch” 22 An exception to the general rule, commonly referred to as the “escape hatch” or the 23 “savings clause,” “permits a federal prisoner to 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.” Stephens, 464 F.3d at 897 (citations and internal quotations 26 omitted); see also 28 U.S.C. § 2255; Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008) (“If 27 the prisoner’s claims qualify for the escape hatch of § 2255, the prisoner may challenge the 28 legality of a sentence through a § 2241 petition in the custodial court”); Hernandez, 204 F.3d at 6 1 864-65. The exception is very narrow. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). 2 “[A] prisoner may file a § 2241 petition under the escape hatch when the prisoner (1) makes a 3 claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that 4 claim.” Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012) (internal quotations omitted). 5 “The general rule in this circuit is that the ban on unauthorized second or successive 6 petitions does not per se make § 2255 ‘inadequate or ineffective.’” Lorentsen v. Hood, 223 F.3d 7 950, 953 (9th Cir. 2000) (quoting 28 U.S.C. § 2255). The remedy under § 2255 usually will not 8 be deemed inadequate or ineffective merely because a prior § 2255 motion was denied or because 9 a remedy under § 2255 is procedurally barred. See Aronson v. May, 85 S. Ct. 3, 5 (1964) (denial 10 of a prior § 2255 motion is insufficient to render § 2255 inadequate). The burden is on the 11 petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 12 F.2d 76, 83 (9th Cir. 1963). 13 In this case, petitioner challenges the validity and constitutionality of the sentence 14 imposed by the Western District of Washington rather than the administration of his sentence at 15 FCI-Herlong, proper procedure required him to file a motion pursuant to § 2255 in the Western 16 District of Washington rather than a petition pursuant to § 2241 in this court. Because petitioner 17 has previously filed a § 2255 motion, he must first secure authorization from the Ninth Circuit to 18 file a second or successive § 2255 motion. To proceed with the instant § 2241 petition in this 19 court, petitioner bears the burden of establishing that a § 2255 motion is an inadequate or 20 ineffective remedy. 21 V. Analysis 22 A. Actual Innocence? 23 Petitioner brings a freestanding claim of actual innocence, arguing that the changed 24 federal regulations demonstrate that he is actually innocent as a matter of law. (ECF No. 1 at 10.) 25 In the Ninth Circuit, a claim of actual innocence for purposes of the § 2255 savings clause 26 is tested using the standard articulated by the U.S. Supreme Court in Bousley v. United States, 27 523 U.S. 614 (1998). Stephens, 464 U.S. at 898. 28 //// 7 1 “To establish actual innocence, petitioner must demonstrate that, in light of all the 2 evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley, 3 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)) (internal quotation marks 4 omitted). Such showing requires that the petitioner make a showing of factual innocence, “not 5 mere legal insufficiency.” Bousley, 523 U.S. at 623. In other words, the exception concerns 6 “actual as opposed to legal innocence.” Sawyer v. Whitley, 505 U.S. 333, 339 (1992). The 7 actual innocence requirement is not satisfied when a petitioner merely asserts that he was 8 factually innocent of his crimes of conviction but does not introduce “evidence tending to show 9 that he did not commit the [acts] underlying his convictions.” Marrero, 682 F.3d at 1192. The 10 petitioner bears the burden of proof. Lorentsen, 223 F.3d at 954. When a prisoner cannot 11 establish actual innocence, the claim must proceed under § 2255. 12 “A prototypical example of ‘actual innocence’ in a colloquial sense is the case where the 13 State has convicted the wrong person of the crime.” Sawyer, 505 U.S. at 340. Although such 14 claims are regularly made after conviction in both state and federal courts, they are “quite 15 regularly denied because the evidence adduced in support of them fails to meet the rigorous 16 standards for granting such motions.” Id. Only in rare instances, such as when another person 17 has confessed to the crime, is it “evident that the law has made a mistake.” Id. 18 Here, as argued by respondent, petitioner’s claim does not demonstrate that petitioner is 19 factually innocent of health care fraud, filing false tax returns, and illegally distributing controlled 20 substances. Petitioner is required to make a factual showing that he did not engage in such illegal 21 activities. Bousley, 523 U.S. at 623, quoting Schlup, 513 U.S. at 327-28 (“To establish actual 22 innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not 23 that no reasonable juror would have convicted him.”) Petitioner’s reliance on a change in the 24 federal regulations is an argument solely based on legal insufficiency -- arguing that the 25 government’s undercover operations were improper. But such claim is not based on factual 26 innocence. “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” 27 Bousley, 523 U.S. at 623-24, citing see Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Petitioner 28 has failed to demonstrate his factual innocence. 8 1 B. Unobstructed Procedural Shot? 2 But even assuming petitioner could establish his factual innocence, he cannot demonstrate 3 that he has not had an unobstructed procedural shot at presenting this claim. 4 To determine whether a petitioner has had an unobstructed shot at pursuing a claim, the 5 court must consider (1) whether the claim’s legal basis arose after petitioner had exhausted his 6 direct appeal and first § 2255 motion, and (2) whether the law changed in any way relevant to the 7 claim after the § 2255 motion. Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011). 8 An intervening court decision does not establish that a petitioner failed to have an unobstructed 9 procedural shot at a claim unless it “effect[s] a material change in applicable law.” Harrison, 519 10 11 F.3d at 960. When a § 2241 petitioner previously raised the same claim in a § 2255 motion, he has 12 “had an unobstructed procedural shot to pursue his claim.” Harrison, 519 F.3d at 961. “[I]t is not 13 enough that petitioner is presently barred from raising his claim of innocence by motion under 14 § 2255. He must never have had the opportunity to raise it by motion.” Ivy, 328 F.3d at 1060. 15 “In determining whether a petitioner had an unobstructed shot to pursue his claim, the court must 16 ask whether petitioner’s claim ‘did not become available’ until after a federal court decision.” 17 Harrison, 519 F.3d at 960. “In other words, we consider: (1) whether the legal basis for 18 petitioner’s claim ‘did not arise until after he had exhausted his direct appeal and first § 2255 19 motion; and (2) whether the law changed ‘in any way relevant’ to petitioner’s claim after that first 20 § 2255 motion.” Id. 21 Here, the record reflects that petitioner has consistently argued that he was a substance 22 abuse treatment program, and that the government was required to obtain a court order before 23 beginning their undercover operations. Petitioner raised such challenges in a pretrial motion to 24 dismiss/motion to suppress, on appeal, and again in his initial § 2255 motion brought in the 25 Western District of Washington. Thus, petitioner had an unobstructed procedural shot at raising 26 his arguments in the district of conviction. In addition, petitioner’s earlier challenges have been 27 based on 42 C.F.R. § 2.67. (ECF No. 12-1 at 32, 33, 35, 41, 45.) Section 2.67 was in effect 28 during petitioner’s direct appeal, and his initial § 2255 motion. There have been no material 9 1 changes to 42 C.F.R. § 2.67 since that time. Because petitioner has had a full and fair opportunity 2 to raise his claim, he should not be permitted to raise it again through a § 2241 petition in a 3 different court. See Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003) (petitioner “must never have 4 had the opportunity to raise [his claim of actual innocence] by motion.”) Moreover, petitioner’s reliance on the changes to 42 C.F.R. § 2.11 are unavailing because 5 6 they do not constitute an intervening change in the law relevant to petitioner’s claim. The 7 Substance Abuse Mental Health Services Administration (“SAMSHA”) is a section of the U.S. 8 Department of Health and Human Services, and oversees the federal regulations at issue in this 9 case. SAMSHA explained that the replacement of the terms “alcohol and drug abuse” to 10 “substance use disorder” in § 2.11 were proposed to address inconsistent usage and to consolidate 11 definitions. Confidentiality of Substance Use Disorder Patient Records, 81 Fed. Reg. 6988-01, 12 2016 WL 469576 at *6994 (Feb. 9, 2016). The proposed modifications to the definition of “Part 13 2 Program” were to address the lack of a definition for the term “Part 2 Program,” as well as the 14 interchangeable use of the terms “Program” and “federally assisted alcohol or drug abuse 15 program.” Id. SAMHSA proposed to define a “Part 2 Program” as a federally assisted program 16 (federally assisted as defined in § 2.12(b), and program as defined in § 2.11). 2016 WL 469576 17 at *6994. In addition, the proposed changes to the definition of “program” were to consistently use 18 19 the term “general medical facility,” rather than the terms “general medical care facility” and 20 “general medical facility.” Id. at 6995. To address situations where more substance use disorder 21 treatment services were occurring in general health care and integrated care settings not typically 22 covered under the current regulations, SAMHSA proposed revising the definition to make clear 23 that the definition of program would include such situations. The proposed modified language 24 was: 25 1. If a provider is not a general medical facility or general medical practice, then the provider meets the part 2 definition of a “Program” if it is an individual or entity who holds itself out as providing, and provides substance use disorder diagnosis, treatment, or referral for treatment. 26 27 28 //// 10 1 2 2. If the provider is an identified unit within a general medical facility or general medical practice, it is a “Program” if it holds itself out as providing, and provides, substance use disorder diagnosis, treatment or referral for treatment. 3 4 5 6 7 8 3. If the provider consists of medical personnel or other staff in a general medical facility or general medical practice, it is a “Program” if its primary function is the provision of substance use disorder diagnosis, treatment, or referral for treatment and is identified as such specialized medical personnel or other staff by the general medical facility or general medical practice. 2016 WL 469576 at *6995. In the final rule, SAMHSA adopted the terminology “substance use disorder” and the 9 definition of “Part 2 program” as federally assisted (as defined at 2.12(b)) program (as defined at 10 § 2.11). 82 Fed. Reg. 6052-01, 2017 WL 168822 at *6062 (Jan. 18, 2017). However, SAMHSA 11 declined to finalize proposed changes to the definition of “program,” 12 13 but did make minor updates to the terminology in the text. We are, however, finalizing certain other minor changes to the proposed definition to update terminology so that it is consistent with current best practice. 14 15 16 First, SAMHSA moved the reference to examples from the definition of “Program” to the definition of “Part 2 program.” Second, we retain the language changes from drug and/or alcohol abuse to substance use disorder. 17 18 19 Finally, as stated in the NPRM, SAMHSA clarifies that paragraph (1) of the definition of “Program” would not apply to “general medical facilities”. However, paragraphs (2) and (3) of the definition of “Program” would apply to “general medical facilities.” 20 2017 WL 168822 at *6065. Thus, the minor updates were introduced as “consistent with the 21 definition of a “program,” and read as follows: 22 23 24 25 26 1. If a provider is not a general medical care facility, then the provider meets the part 2 definition of a “Program” if it is an individual or entity who holds itself out as providing, and provides substance use disorder diagnosis, treatment, or referral for treatment. 2. If the provider is an identified unit within a general medical facility, it is a “Program” if it holds itself out as providing, and provides, substance use disorder diagnosis, treatment, or referral for treatment. 27 28 3. If the provider consists of medical personnel or other staff in a general medical facility, it is a “Program” if its primary function is 11 1 the provision of substance use disorder diagnosis, treatment, or referral for treatment and is identified as such specialized medical personnel or other staff by the general medical facility. 2 3 2017 WL 168822 at *6065. 4 SAMHSA also clarifies that the program definition does not categorically exclude buprenorphine providers. However, holding a waiver to prescribe buprenorphine or holding a waiver and prescribing buprenorphine as part of primary care practice also does not lead to categorical inclusion of providers in the definition of a part 2 program; such determinations are fact-specific. Also, a health care provider that does not otherwise meet the definition of a part 2 program would not become a program simply because they provided screening, brief intervention, and/or referral to treatment within the context of general health care. 5 6 7 8 9 10 2017 WL 168822 at *6066. SAMHSA reiterated the meaning of “holds itself out” as consistent 11 with previously published FAQ guidance. 2017 WL 168822 at *6066. Petitioner argues that the above-described modifications were a “substantial revision of 12 13 the term ‘program.’” (ECF No. 14 at 2.) But having reviewed the minor changes to the 14 applicable sections, this court cannot find that such modifications were substantive or relevant to 15 petitioner’s instant claim. Here, the focus of the trial court in this case was whether petitioner’s 16 family medical practice was a substance abuse treatment program. The changes made by 17 SAMHSA were minor, primarily to make the terminology consistent; indeed, SAMHSA avoided 18 making changes to the definition of “program” to avoid confusion. Therefore, such changes do 19 not demonstrate that the legal basis for petitioner’s claim arose after denial of his first § 2255 20 motion or that the law changed in any way relevant to the claim after such denial. Petitioner’s reliance on Alaimalo is unavailing because in Alaimalo, the prisoner 21 22 demonstrated he was actually innocent because he was convicted of importing methamphetamine 23 from California to Guam, which the Ninth Circuit subsequently held was not a crime in United 24 States v. Cabaccang, 332 F.3d 622 (9th Cir. 2003), and such intervening court decision effected a 25 material change in the applicable law. Alaimalo, 645 F.3d at 1047-48. Here, the minor textual 26 changes relied on by petitioner do not constitute such an intervening or material change in 27 applicable law. 28 //// 12 1 C. Conclusion 2 Because the escape hatch requires petitioner to satisfy both his actual innocence and his 3 lack of an unobstructed procedural shot at presenting his claims, this court lacks subject matter 4 jurisdiction to hear petitioner’s challenge to the validity of his underlying conviction under 28 5 U.S.C. § 2241. 6 VI. Transfer? 7 A court lacking jurisdiction of a civil action may transfer the action to a court in which the 8 action could have been brought, provided the transfer is “in the interest of justice.” 28 U.S.C. 9 § 1631; see Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001) (an action should be 10 transferred if “(1) the transferring court lacks jurisdiction; (2) the transferee court could have 11 exercised jurisdiction at the time the action was filed; and (3) the transfer is in the interest of 12 justice.”) . 13 The undersigned declines to recommend transfer of this petition to the Western District of 14 Washington because petitioner previously filed a § 2255 motion in the Western District; he must 15 first seek leave from the Court of Appeals for the Ninth Circuit if he wishes to file a second or 16 successive § 2255 motion in the Western District. 17 VII. Recommendations 18 Accordingly, IT IS HEREBY RECOMMENDED that: 19 1. Respondent’s motion to dismiss (ECF No. 12) be granted; and 20 2. This action be dismissed without prejudice. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 26 objections shall be filed and served within fourteen days after service of the objections. The 27 //// 28 //// 13 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: December 15, 2017 4 5 6 john1310.mtd.2241 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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