Hawkins, Jr. v. Apker

Filing 14

ORDER ADOPTING 9 Report and Recommendations, Overrulling Objection to the Report and Recommendations (Doc. 12, and declining to issue a Certificate of Appealability. The Clerk of Court is directed to close this case and enter judgment accordingly. Signed by Judge A Wallace Tashima on 7/26/12. (SMBE)

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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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WILLIE RAY HAWKINS, JR.,

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Petitioner,

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vs.

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CRAIG APKER, WARDEN,
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Respondent.
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No. CV 10-0450 TUC AWT (JCG)
ORDER

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Willie Ray Hawkins, presently confined in the United States Penitentiary in Tucson,

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Arizona, and proceeding pro se, filed a habeas corpus petition (“Petition”) pursuant to 28

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U.S.C. § 2241 on July 27, 2010. Doc. 1. The matter was referred to Magistrate Judge

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Jennifer C. Guerin, who issued a Report and Recommendation (“R & R”) on February 11,

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2011, recommending that the Petition be denied. Doc. 9. Hawkins filed timely objections

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to the R & R on March 28, 2011. Doc. 12.1 As explained below, the court will overrule

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Hawkins’ objections and adopt the R & R in full, except that it will dismiss rather than deny

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the Petition.

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The Court allowed Hawkins until March 30, 2011, to file objections. Doc. 11.

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In May 1995, Hawkins was convicted of possession with intent to distribute crack, a

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violation of 21 U.S.C. § 841(a)(1), and use or carrying a firearm during a drug crime, a

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violation of 18 U.S.C. § 924(c)(1). Doc. 8-1 at 8-9, 8-2 at 13. He was sentenced in

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September 1995 and his conviction was affirmed on direct appeal in October 1996. In the

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meantime, in December 1995 the Supreme Court decided Bailey v. United States, 516 U.S.

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137 (1995). Bailey cabined firearm “use” offenses under § 924(c) to “active use, not just

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mere possession.” Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003) (discussing Bailey).

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It is Bailey upon which Hawkins relies in asserting actual innocence in the Petition

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presently before the court. Hawkins did not attempt to raise a claim under Bailey in his direct

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appeal, however. Hawkins filed his first § 2255 motion in 1998, three years after Bailey had

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come down, though whether he raised the Bailey issue is unclear. In any event, Hawkins’

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motion was dismissed with prejudice in late 1999, United States v. Hawkins, Cr. No. 94-264

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(M.D.N.C.), Doc. 105, and he was denied a certificate of appealability, United States v.

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Hawkins, 2000 WL 432445, at *1 (4th Cir. Apr. 20, 2000). Hawkins filed another § 2255

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motion in North Carolina federal district court in 2003, and that too was dismissed, United

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States v. Hawkins, Cr. No. 94-264 (M.D.N.C.), Doc. 116, and a certificate of appealability

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denied, United States v. Hawkins, 2004 WL 1205713, at *1 (4th Cir. June 2, 2004).

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II

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The district court reviews de novo the portions of the magistrate judge’s R & R to

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which an objection has been filed. 28 U.S.C. § 636(b)(1) (“A judge of the court shall make

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a de novo determination of those portions of the report . . . to which objection is made.”); see

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also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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III

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In his Petition, Hawkins claims that, under the Supreme Court’s interpretation of 18

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U.S.C. § 924(c) in Bailey v. United States, 516 U.S. 137 (1995), the evidence was

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insufficient to support his conviction for violating that statute. This claim goes to the legality

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of Hawkins’ sentence. As a general rule, motions under § 2255 are “the exclusive means by

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which a federal prisoner may” raise such claims, and “restrictions on the availability of a §

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2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” Stephens v.

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Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (internal quotation marks omitted). There is,

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however, an “escape hatch”: a federal prisoner may “file a habeas corpus petition pursuant

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to § 2241 to contest the legality of a sentence where his remedy under § 2255 is ‘inadequate

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or ineffective to test the legality of his detention.’” Hernandez v. Campbell, 204 F.3d 861,

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864-65 (9th Cir. 2000) (per curiam) (quoting § 2255). In particular, “a § 2241 petition is

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available under the ‘escape hatch’ of § 2255 when a petitioner (1) makes a claim of actual

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innocence, and (2) has not had an ‘unobstructed procedural shot’ at presenting that claim.”

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Stephens, 464 F.3d at 898 (quoting Ivy, 328 F.3d at 1060). The R & R recommended

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concluding that Hawkins had had an unobstructed procedural shot at presenting his claim.

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Hawkins objects that he is barred from raising his Bailey claim in a § 2255 motion,

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and therefore satisfies the criteria for the escape hatch. Hawkins’ initial premise is accurate:

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he has already filed multiple unsuccessful § 2255 motions in federal district court in North

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Carolina, and he has no right under § 2255 to file another. A successive § 2255 motion can

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be filed only with a certification from the appropriate court of appeals (here, the Fourth

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Circuit) that: (1) the claim relies on “a new rule of constitutional law, made retroactive to

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cases on collateral review by the Supreme Court, that was previously unavailable,” or (2)

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there is “newly discovered evidence that, if proven and viewed in light of the evidence as a

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whole, would be sufficient to establish by clear and convincing evidence that no reasonable

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factfinder would have found the movant guilty of the offense.” 28 U.S.C. § 2255(h); see

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Stephens, 464 F.3d at 897-98. Hawkins’ claim is a statutory claim – it relies neither on a

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“new rule of constitutional law” nor on “newly discovered evidence.” Cf. Stephens, 464 F.3d

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at 898 (claim based on Supreme Court’s interpretation of language in 21 U.S.C. § 848 was

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a “statutory claim”). Thus a successive § 2255 motion is not available to him.

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But it does not follow from this premise that Hawkins may take advantage of the §

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2255 savings clause and file a § 2241 petition. “[T]he general rule in this circuit is that the

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ban on unauthorized second or successive petitions does not per se make § 2255 ‘inadequate

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or ineffective.’” Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) (quoting § 2255). A

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procedural shot is not obstructed simply because a petitioner cannot now file a § 2255

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motion. In determining whether the petitioner ever had an unobstructed shot to pursue his

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claim, the court considers: “(1) whether the legal basis for petitioner’s claim ‘did not arise

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until after he had exhausted his direct appeal and first § 2255 motion;’ and (2) whether the

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law changed ‘in any way relevant’ to petitioner’s claim after that first § 2255 motion.”

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Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (quoting Ivy, 328 F.3d at 1060-61).

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In Stephens, for example, the defendant was convicted, and his first § 2255 motion denied,

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several years before the Supreme Court decision which gave rise to his actual innocence

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claim. Stephens, 464 F.3d at 898. Because his claim did not satisfy the criteria for a second

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or successive § 2255 motion, Stephens never got – and never would get – an opportunity to

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present his claim in a § 2255 motion, and he was therefore deprived of an unobstructed

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procedural shot at presenting his claim. Id. The same was true for the defendant’s Bailey

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claim in Triestman v. United States, 124 F.3d 361 (2d Cir. 1997). There, the defendant had

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been convicted and had filed his first § 2255 motion before Bailey was decided; given the

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successive-petition constraints of § 2255, he was barred from asserting actual innocence

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under Bailey in a second § 2255 petition.

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Here, by contrast, the Supreme Court decision upon which Hawkins relies was issued

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before he filed his first § 2255 motion. He could have raised the claim then. That he failed

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to do so when he had the chance does not mean he lacked an unobstructed procedural shot

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at presenting his Bailey claim – only that he failed to take advantage of the shot when it was

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available.2

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IV

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Because Hawkins’ Petition does not satisfy the terms of the § 2255 savings clause, it

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cannot be brought as a § 2241 petition. Construed as what it is – a successive § 2255 motion

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– the motion must be dismissed for lack of jurisdiction; its filing has not been authorized by

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the appropriate court of appeals. See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir.

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2000).

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“Unless a circuit justice or judge issues a certificate of appealability [“COA”], an

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appeal may not be taken to the court of appeals from . . . the final order in a proceeding under

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section 2255.” 28 U.S.C. § 2253(c)(1). Where, as here, the court denies a habeas petition

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on procedural grounds, “a COA should issue when the prisoner shows, at least, that jurists

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of reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right and that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this

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case, the court finds that reasonable jurists would not find it debatable that the court lacks

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Hawkins suggests in passing that he failed to assert a Bailey claim on the
advice of his trial counsel:

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The Petitioner was advised by his attorney of record that if he applied for relief
under Baily [sic], the prosecution would respond by filing a 2[-]point
enhancement to obtain a life sentence. This alone is enough of a deterrent to
stop anyone from filing for relief. The Petitioner filed in haste “bam boozled”
[sic] into believing that an appropriate claim of Ineffective Assistance Claim
[sic] in August, 1998 would remedy to correct [sic] his conviction and
sentence.

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Petitioner’s Objection at 2-3. This allegation lacks facial plausibility: it assumes that Bailey
was decided by the time Hawkins was sentenced, when in fact Bailey was decided months
later. The problem is not that Hawkins failed to raise a Bailey claim before or at his
sentencing (that would have been impossible); instead it is that Hawkins failed to raise a
Bailey claim on direct appeal, or in a timely initial § 2255 motion.

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jurisdiction over Hawkins’ petition: it is not properly brought pursuant to § 2241, and does

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not fall within the savings clause of § 2255. Therefore the court declines to issue a COA.

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Accordingly,

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IT IS ORDERED that:

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1.

Hawkins’ Objection (Doc. 12) to the R & R is overruled;

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2.

The R & R of the Magistrate Judge (Doc. 9) is adopted, and the

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Petition (Doc. 1) is dismissed for lack of jurisdiction;
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The court declines to issue a COA.

The Clerk of Court is directed to close this case and enter judgment accordingly.

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DATED this 26th day of July, 2012.

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