(HC) Brim v. Thompson, No. 2:2019cv01682 - Document 7 (E.D. Cal. 2019)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 9/23/2019 ORDERING Clerk to assign a district judge to this case and RECOMMENDING this action be dismissed without prejudice. Assigned and referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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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 BRIAN KEITH BRIM, 12 13 14 No. 2:19-cv-1682 KJN P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS PAUL THOMPSON, 15 Respondent. 16 17 18 I. Introduction Petitioner, a federal prisoner proceeding pro se, filed a petition for a writ of habeas corpus 19 pursuant to 28 U.S.C. § 2241. Petitioner paid the filing fee. Petitioner asks the court to reopen 20 his underlying federal criminal case and appoint counsel so that petitioner may address the 21 sentencing court in person. (ECF No. 1 at 7.) As discussed below, the undersigned finds that the 22 petition should be summarily dismissed for lack of jurisdiction. 23 II. Jurisdiction 24 A federal prisoner who wishes to challenge the validity or constitutionality of his federal 25 conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence 26 under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988); see also 27 Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007). In 28 such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. Generally, a 1 1 prisoner may not collaterally attack a federal conviction or sentence by way of a petition for a 2 writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 3 (9th Cir. 1991); Tripati, 843 F.2d at 1162. 4 On the other hand, a prisoner challenging the manner, location, or conditions of that 5 sentence’s execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in 6 the district where the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 7 204 F.3d 861, 864-65 (9th Cir. 2000) (per curiam). “The general rule is that a motion under 28 8 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his 9 detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a 10 11 petition under 28 U.S.C. § 2241.” Stephens, 464 F.3d at 897 (citations omitted). An exception exists by which a federal prisoner may seek relief under § 2241 if he can 12 demonstrate the remedy available under § 2255 to be “inadequate or ineffective to test the validity 13 of his detention.” United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting 28 U.S.C. 14 § 2255). The Ninth Circuit has recognized that it is a very narrow exception. Ivy v. Pontesso, 15 328 F.3d 1057, 1059 (9th Cir. 2003). Usually, the remedy under § 2255 will not be deemed 16 inadequate or ineffective merely because a prior § 2255 motion was denied, or because a remedy 17 under that section is procedurally barred. See Aronson v. May, 85 S. Ct. 3, 5 (1964) (a court’s 18 denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 F.2d at 19 1162-63 (a petitioner’s fears of bias or unequal treatment do not render a § 2255 petition 20 inadequate). 21 The Ninth Circuit has held that Section 2255 provides an ‘inadequate and ineffective’ 22 remedy (and thus that the petitioner may proceed under Section 2241) when the petitioner: 23 (1) makes a claim of actual innocence; and, (2) has never had an ‘unobstructed procedural shot’ at 24 presenting the claim. Stephens, 464 F.3d at 898. The burden is on the petitioner to show that the 25 remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 26 III. Discussion 27 Here, petitioner does not challenge the manner, location or conditions of the execution of 28 his sentence. Rather, petitioner challenges the legality of his sentence, which he appears to claim 2 1 was amended by the district court on July 19, 2013, in United States v. Brim, No. SA CR 93- 2 00098 LHM (C.D. Cal. July 19, 2013).1 In such order, the Central District denied petitioner’s 3 fifth request for relief under 28 U.S.C. § 2255. (ECF No. 1 at 11.) In ruling on petitioner’s Rule 4 36 motion, the court found that the imposition of separate assessments upon each of the three 5 counts would constitute multiple punishments, and therefore reduced petitioner’s assessment from 6 $150.00 to a total of $50.00. (ECF No. 1 at 12-13.) Thus, petitioner’s request to lift the stay,2 7 reopen his underlying criminal case, appoint counsel, and allow petitioner to allocute anew in 8 light of the July 19, 2013 order, is more appropriately raised in a § 2255 motion. 9 Interestingly, despite the multiple references to 28 U.S.C. § 2255 in the instant petition 10 (ECF No. 1 at 4-5), petitioner fails to mention that he currently has a § 2255 motion pending in 11 the Central District. United States v. Brim, No. 8:93-cr-0098 LHM (C.D. Cal. July 19, 2013) 12 (ECF No. 526). Petitioner filed a § 2255 motion on June 5, 2017,3 in which petitioner asks the 13 Central District to entertain an amended § 2255 motion to correct sentencing errors 14 unconstitutionally imposed. No. 8:93-cr-0098 LHM (ECF No. 526 at 1.) The government filed 15 its opposition on April 15, 2019, and, following leave of court, petitioner filed an amended reply 16 on June 17, 2019. No. 8:93-cr-0098 LHM (ECF Nos. 547; 554). As of September 18, 2019, no 17 decision had yet been rendered. Id. 18 Moreover, petitioner does not raise a claim of actual innocence, or argue that he has never 19 had an ‘unobstructed procedural shot’ at presenting the claim. Indeed, the record shows that he is 20 21 22 23 24 25 26 27 28 1 A court may take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”) (internal quotation omitted). 2 It appears that petitioner refers to the Ninth Circuit order affirming his conviction on the conspiracy count, but vacating and staying his sentences on the remaining two counts. See, e.g., No. 8:93-cr-00098-LHM (ECF No. 483 at 5), citing United States v. Brim, 129 F.3d 128 (9th Cir. 1997). 3 On March 16, 2018, the Ninth Circuit issued an order stating that the July 19, 2013 order granting petitioner’s motion under Rule 36 should be treated as an amended judgment, and therefore it was not necessary for petitioner to seek authorization to file a second or successive § 2255 motion. No. 8:93-cr-0098-LHM (ECF No. 525 at 1). 3 1 pursuing such relief at this very moment. In addition, to the extent petitioner is pursuing relief 2 here due to a perceived delay in ruling on his § 2255 motion in the Central District, such delay 3 warrants no exception. The Ninth Circuit has expressly held that “delay in the resolution of a 4 section 2255 motion does not entitle [petitioner] to bypass section 2255 in favor of section 2241. . 5 . .” Pirro, 104 F.3d at 300. 6 7 For all of the above reasons, the instant petition should be dismissed for lack of jurisdiction. 8 9 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign a district judge to this case; and 10 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, petitioner may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 16 he shall also address whether a certificate of appealability should issue and, if so, why and as to 17 which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 18 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 19 2253(c)(3). Petitioner is advised that failure to file objections within the specified time may 20 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 21 1991). 22 Dated: September 23, 2019 23 24 25 /brim1682.156f 26 27 28 4
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