Scales v. Chavez

Filing 18

ORDER adopting Report and Recommendations re 16 Report and Recommendations.. Ordered 2241 Petition 1 is dismissed for lack of jurisdiction and Clerk of Court directed to send a copy of this Order to the Fourth Circuit Court of Appeals and USDC for Eastern District of VA. Signed by Judge David C Bury on 9/5/08.(SSU, )

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A. v. Anthony Scales (Reg. No. 11302-083), Petitioner, UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) )

CV-07-0451-TUC-DCB

ORDER

Ricardo Chavez, Respondent. ___________________________________ P ending before the Court are

Petitioner's

Objections

to

the

Magistrate's Report and Recommendation, which recommends dismissal of Petitioner's Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. §2241. Having performed its de novo review of the action, this

Court finds the Objections without merit and will adopt the Magistrate's Report and Recommendation as the ruling of the Court. DISCUSSION Standard of Review

When objections are made to the findings and recommendations of a magistrate judge, the district court must conduct a de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). B. Objections

First, Petitioner claims that the Report and Recommendation (R&R) fails to consider certified copies of prior convictions used by the Eastern District of Virginia to sentence Petitioner to life in prison. Second, Petitioner claims that the Report and Recommendation fails to

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address pertinent Ninth Circuit Court of Appeals case law.

Petitioner

goes on to rehash many of the claims and allegations previously lodged in the direct criminal appeal and in motions to vacate his federal sentence. C. De Novo Review

In August 1998, after a jury trial in the United States District Court for the Eastern District of Virginia, Petitioner was convicted of distribution of crack cocaine; use and carry of a firearm during a crime of violence or drug trafficking offense; possession with intent to distribute crack cocaine; use and carry of a firearm during a crime of violence or drug trafficking offense; possession of a firearm by a convicted felon; obstruction of justice; attempted killing of a witness (tampering) and aiding and abetting; and possession with intent to distribute crack cocaine. See United States v. Scales, 231 F.Supp. 437 (E.D.Va. 2002); United States v. Scales, 2 Fed. Apex. 390, 391 (4th Cir. 2001). Petitioner was sentenced to life in prison under 18 U.S.C. §

3559, plus forty-five years. On June 30, 1999, the federal court in the Eastern District of Virginia (1:98CR00114) treated a letter from Petitioner as a motion to correct sentence pursuant to Fed.R.Crim.P. 35 and denied it as untimely filed. On May 22, 2002, Petitioner filed a Motion to Vacate Federal Sentence pursuant to 28 U.S.C. §2255, which was denied on the merits. Petitioner filed an appeal from the denial of the §2255 motion, which was dismissed. In November 2005, Petitioner filed a motion to file a

successive application for relief pursuant to 28 U.S.C. §2244 with the Fourth Circuit Court of Appeals, which was denied (Appeal Case No. 076226). On September 10, 2007, Petitioner filed the herein motion pursuant 2

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to 28 U.S.C. §2241 with this Court, challenging his sentence of life imprisonment under the federal "Three Strikes" statute imposed by the sentencing court. Petitioner's sole claim is that he is factually

innocent of the sentence enhancement offenses. P e titioner is incarcerated in a prison facility within our

jurisdiction, but this Court is not the sentencing court. A federal prisoner may file a habeas petition under § 2241 to challenge the legality of a sentence when the prisoner's remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255. If a prisoner's claims qualify for the escape hatch of § 2255, the prisoner may challenge the legality of a sentence through a § 2241 petition in the custodial court. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir.2000). This Court concludes that Petitioner has not properly invoked the "escape hatch" exception of §2255 that would permit him to file a petition for habeas corpus under §2241. Stephens v. Herrera, 464 F.3d 895, 896 (9th Cir. 2006); Hernandez, 204 F.3d at 866. Petitioner "cannot satisfy the actual innocence requirement. In this circuit, a claim of actual innocence for purposes of the escape hatch of §2255 is tested by the standard articulated by the Supreme Court in Bousley v. United States, 523 U.S. 614(1998): `To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.' Id. at 623." Stephens , 464 F.3d at 898. This Court adopts the Report and

Recommendation's analysis that Petitioner's arguments of actual innocense of the predicate convictions used for enhancement purposes are not persuasive and do not present viable claims of innocence. (R&R at 6-11.) 3

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The Magistrate Judge was not required to review the "certified copies of the actual adjudication" of both robberies to reach this conclusion. (Objections at 2.) Petitioner's thorough and objections are not well law taken, as it because is after a to

exhaustive case, the

review

of

the Judge

applied

Petitioner's

Magistrate

correctly

concluded

that

"Petitioner has not demonstrated that he has not had an `unobstructed procedural shot' at presenting his claim, nor has he demonstrated a claim of innocence."(R&R at 13.) The Magistrate Judge recommends that because

the requirements for filing a Section 2241 in lieu of a Section 2255 have not been met, this Section 2241 habeas petition may not be treated as a successive Section 2255 motion and the action should be dismissed for lack of jurisdiction. Ninth Circuit case law supports this conclusion.

Stephens, 464 F.3d at 899. Accordingly, IT IS ORDERED that the Court, after conducting a de novo review of the record, ADOPTS the Report and Recommendation (Doc. No. 16) in its entirety as the ruling of the Court. IT IS FURTHER ORDERED that the Petitioner's Petition Under 28 U.S.C. §2241 for a Writ of Habeas Corpus by a Person in Federal Custody is DISMISSED for lack of jurisdiction. This action is terminated.

IT IS FURTHER ORDERED that the Clerk's Office is directed to send a copy of this Order to the Fourth Circuit Court of Appeals(Case Nos. 076226; 03-6202), as well as the United States District Court for the // //

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Eastern

District

of

Virginia

(Alexandria)(USA

v.

Scales,

Case

No:

1:98CR00114). DATED this 5th day of September, 2008.

copy to 4th CCA; USDC/Eastern District of Virginia on 9/5/08 by cjs

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