Rojas v. Unknown Party

Filing 20

ORDER that J.T. Shartle, Warden shall be substituted as Respondent for "Warden, USP Tucson" pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and Rule 43(c)(2) of the Federal Rules of Appellate Procedure; Defendants' Motio n to Dismiss (Doc. 9 ) is GRANTED. Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus (Doc. 1 ) is DISMISSED for lack of jurisdiction. In the event Movant files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Courts procedural ruling debatable. Signed by Judge Cindy K Jorgenson on 9/22/2017.(SIB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Juan Gerardo Rojas,
Petitioner,

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ORDER

v.

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No. CV-16-00509-TUC-CKJ

J.T. Shartle, Warden,

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Respondent.

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On May 16, 2017, Magistrate Judge Eric J. Markovich issued a Report and

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Recommendation (“R&R”) (Doc. 15) in which he recommended this Court grant

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Respondent’s Motion to Dismiss (Doc. 9) and dismiss Petitioner’s Petition Under 28

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U.S.C. § 2241 for a Writ of Habeas Corpus (Doc. 1). Judge Markovich determined that

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this Court does not have jurisdiction over the matter because Petitioner cannot show he is

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afforded relief under the savings clause of 28 U.S.C. § 2255(e). The Court agrees with

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the Magistrate Judge’s evaluation, and will grant Respondent’s Motion to Dismiss.

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Standard of Review

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The standard of review applied to a magistrate judge’s report and recommendation

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is dependent upon whether a party files objections – the Court need not review portions

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of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985).

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However, the Court must “determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to. The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. §

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636(b)(1). The statute does not “require [] some lesser review by [this Court] when no

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objections are filed.” Thomas, 474 U.S. at 149-50. Rather, this Court is not required to

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conduct “any review at all . . . of any issue that is not the subject of an objection.” Id. at

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149.

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There being no objection by the parties, the Court adopts the Magistrate Judge’s

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recommendation to substitute J.T. Shartle, Warden, as Respondent for “Warden, USP-

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Tucson” pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and Rule 43(c)(2)

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of the Federal Rules of Appellate Procedure.

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Also, Petitioner has not objected to the Magistrate Judge’s recommendation that

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the Court may not exercise jurisdiction over the petition simply because Petitioner lacked

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counsel in his initial § 2255 proceeding. After review, the Court adopts the Magistrate

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Judge’s determination as to this issue.

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Furthermore, since there are no objections to the Magistrate Judge’s rendering of
the procedural and factual history, the Court adopts those recitations.
 Factual and Procedural History

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On June 8, 2006, a federal jury in South Dakota found Petitioner guilty of four

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counts of aggravated sexual assault of a minor and two counts of assault on a minor

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leading to substantial bodily injury. (Doc. 1-2 at 3-4.) Petitioner was sentenced to life

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imprisonment. (Id. at 4.)

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Petitioner appealed to the Eighth Circuit, challenging the calculation of his

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sentence under the U.S. Sentencing Guidelines, arguing there was not sufficient evidence

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to convict, and asking for a new trial because one of the victims later recanted her

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testimony. United States v. Rojas, 520 F.3d 876, 885-86 (8th Cir. 2008). The Eighth

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Circuit remanded the case for an evidentiary hearing only as to the issue of the

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recantation. (Id.) The District Court of South Dakota conducted an evidentiary hearing,

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but denied the motion for new trial. (Doc. 1-2 at 4.) Petitioner did not seek review by the

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Supreme Court. (Id.)

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On March 16, 2009, Petitioner filed his first § 2255 motion pro se. A South

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Dakota District Judge denied Plaintiff’s motion to vacate on all assertions of ineffective

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assistance of trial counsel other than the allegation that Petitioner received ineffective

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assistance because counsel did not attempt to admit taped interviews of the victims to

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show the interviewer was impermissibly suggestive. Rojas v. United States, 2009 WL

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3764011, *4 (D. S.D. Nov. 9, 2009). After referral and review by a Magistrate Judge, the

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District Judge adopted the Magistrate Judge’s recommendation to deny the motion. Rojas

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v. United States, 2010 WL 1443559 (D. S.D. Apr. 9, 2010).

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On September 26, 2011, Petitioner filed a Petition for Writ of Habeas Corpus

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Pursuant to 28 U.S.C. § 2241 in the District of South Dakota. Rojas v. Apker, No. 3:11-

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CV-11-3018-CBK (D. S.D.) at Doc. 1. The petition alleged ineffective assistance of trial

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counsel, cruel and unusual punishment, and actual innocence. Id. The District Court

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denied Petitioner’s motion, stating that the claims had been previously raised and ruled

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upon, and Petitioner had not shown his first § 2255 petition was an inadequate remedy.

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(Doc. 9-1 at 2-3.) The Eighth Circuit affirmed the District Court’s decision, agreeing that

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Petitioner had not demonstrated a § 2255 petition was an inadequate or ineffective

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remedy. Rojas v. Apker, 470 F.App’x. 522, 523 (8th Cir. 2012) (unpublished).

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On August 4, 2016, Petitioner—presently confined to the United States

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Penitentiary-Tucson—again filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C.

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§ 2241, this time in the District of Arizona. (Doc. 1) Petitioner acknowledges that in

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order to seek relief under § 2241, he must prove that his first § 2255 filing was an

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inadequate or ineffective remedy under the escape hatch provision of § 2255(e).

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Petitioner does not argue his first § 2255 petition was ineffective or inadequate, instead

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he claims the Court should nonetheless exercise jurisdiction over this matter because (1)

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the escape hatch provision is unconstitutionally vague, and (2) his remedy under § 2255

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was inadequate because he submitted his initial § 2255 petition pro se. (Doc. 1-2 at 6-10.)

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In addition, Petitioner raises issues of ineffective assistance of appellate counsel and

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structural error committed by the Court of Appeals. (Doc. 1 at 7-8.)

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The petition was referred to Magistrate Judge Eric J. Markovich. Judge Markovich

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issued an R&R, denying relief. (Doc. 15.) Petitioner filed Objections to the Report and

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Recommendation (Doc. 18) arguing only that (1) the Ninth Circuit has not addressed

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whether the savings clause is unconstitutionally vague, and (2) the Eleventh Circuit’s

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case law in McCarthan v. Director of Goodwill Industry-Suncoast, Inc., 851 F.3d 1076

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(11th Cir. 2017) shows there is a deep uncertainty over the application of the escape

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hatch provision. (Id. at 3.) Respondent countered, stating that Petitioner has not shown

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the savings clause is vague. (Doc. 19 at 2-4.) He has not supported his ability to raise his

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argument with precedential law, and recent case law supporting a circuit split is an

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outlier. (Id. at 4.) Respondent also argued that the savings clause is not subject to

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challenge because it is a jurisdictional scheme, not criminal. (Id. at 4.) Finally

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Respondent states that even if the Court found the savings clause unconstitutional, it

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would not grant relief for Petitioner. (Id. at 5.)

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Availability of § 2241 Relief Under “Escape Hatch” or “Savings Clause”

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A federal prisoner may challenge the constitutionality of his sentence by filing a

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motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Harrison v.

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Ollison, 519 F.3d 952, 954 (9th Cir. 2008). “Generally, motions to contest the legality of

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a sentence must be filed under § 2255 in the sentencing court, while petitions that

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challenge the manner, location, or conditions of a sentence’s execution must be brought

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pursuant to § 2241 in the custodial court.” Tripati v. Henman, 843 F.2d 1160, 1162 (9th

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Cir. 1988). “There is an exception, however, set forth in § 2255: A federal prisoner may

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file a habeas petition under § 2241 to challenge the legality of a sentence when the

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prisoner’s remedy under § 2255 is ‘inadequate or ineffective to test the legality of his

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detention.’” Harrison, 519 F.3d at 956. This remedy is referred to as either the “savings

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clause” or “escape hatch” provision. Id.

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This exception is limited, however, and a petition does not qualify under the

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escape hatch simply because a petitioner is prevented from filing successive § 2255

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petitions. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Lorentson v. Hood, 223

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F.3d 950, 953 (9th Cir. 2000). The burden of presenting evidence affirmatively showing

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the inadequacy or ineffectiveness of the § 2255 remedy rests with the petitioner. Redfield

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v. United States, 315 F.2d 76, 83 (9th Cir. 1963).

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In the Ninth Circuit, the filing of a § 2241 petition is permitted under the escape

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hatch despite a restriction on successive § 2255 petitions when “petitioner ‘(1) makes a

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claim of actual innocence, and (2) has not had an unobstructed procedural shot at

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presenting that claim.’” Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011)

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(quoting Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006).

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First, to determine actual innocence for the purposes of a § 2241 habeas motion,

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the petitioner “must demonstrate that, in light of all the evidence, it is more likely than

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not that no reasonable juror would have convicted him.” Id. In addition, “[a] petitioner is

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actually innocent when he was convicted for conduct not prohibited by law.” United

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States v. Avery, 719 F.3d 1080, 1085 (9th Cir. 2013) (quoting Alaimalo, 645 F.3d 1047).

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Second, to determine whether petitioner had an “unobstructed procedural shot,”

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the Ninth Circuit evaluates, “(1) whether the legal basis for petitioner’s claim ‘did not

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

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whether the law changed ‘in any way relevant’ to petitioner’s claim after that first § 2255

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motion.” Harrison, 519 F.3d at 960 (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060-61

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(9th Cir. 2006)).

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Petitioner makes no claim that his ability to seek relief under § 2241 is because he

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is actually innocent of his convicted offenses. Nor does Petitioner allege a fundamental

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change in the law prevented him from having an unobstructed procedural shot at raising

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his claim. The Court, therefore, does not have jurisdiction to hear Petitioner’s claim under

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the Ninth Circuit’s established savings clause case law.

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Instead, Petitioner argues that § 2255’s savings clause is unconstitutionally vague,

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and therefore in and of itself an inadequate measure of relief. (Doc. 1-2 at 6-7.) Petitioner

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claims the savings clause should not be applied in his petition under § 2241, and he

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should be permitted to proceed with his claim in this Court. (Id.)

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 Unconstitutionally Vague

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Rojas claims that the Court should find the escape clause unconstitutional because

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the problems in the savings clause are identical to the problems addressed in the Supreme

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Court’s findings in Johnson v. United States, 135 S.Ct. 2551, 2260 (2015). Assumedly,

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Petitioner means that the application of vagueness doctrine is identical, not the facts,

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since Johnson dealt with the residual clause of the Armed Career Criminal Act, not the

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procedural qualifications under the § 2255 savings clause. In support of this assertion,

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Plaintiff points to a discord between circuits discussed in Eleventh Circuit case law.

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Wofford v. Scott, 177 F.3d 1236, 1241 (11th Cir. 1999); Bryant v. Warden FCC-Coleman

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Medium, 738 F.3d, 1253, 1279 (11th Cir. 2013).

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The Magistrate Judge determined that the savings clause is not unconstitutionally

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vague, and that circuit courts were uniform in permitting successive habeas petitions

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under § 2241 when two factors are present: “actual innocence and retroactivity of a

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decision that materially changed the law subsequent to a prisoner’s direct appeal and first

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§ 2255 motion.” (Doc. 15 at 7) (citing Reyes-Requena v. United States, 243 F.3d 893 (5th

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Cir. 2001) (internal quotations omitted).1

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The Court agrees that the factors for determining vagueness described in Johnson

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are generally applicable here. In Johnson, the Supreme Court determined that a challenge

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to a statute as unconstitutionally vague must show “[the statute] . . . [is] so standardless

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that it invites arbitrary enforcement.” Johnson, 135 S.Ct. at 2260. “’[T]he failure of

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persistent efforts . . . to establish a standard’ can provide evidence of vagueness.” Id.

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(quoting United States v. L. Cohen Grocery Co., 255 U.S. 81, 91 (1921).

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o Circuit Split in Application of Savings Clause

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Although the Court concurs with the Magistrate Judge that the statute it not overly

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vague, there are clearly different tests the circuit courts apply in deciding when a § 2255

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petition is inadequate or ineffective, permitting a successive challenge under § 2241.

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Circuit courts have traditionally taken three positions when determining whether a

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The Magistrate Judge erroneously cited Reyes-Requena as being from the Ninth Circuit, when
in fact it is a Fifth Circuit opinion.

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claim falls under the savings clause: the constitutional test, the unobstructed procedural

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shot test, and the test applied by the Ninth Circuit—the novelty test. Recently, the

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Eleventh Circuit’s opinion in McCarthan v. Director of Goodwill Industries-Suncoast,

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Inc., 851 F.3d 1076 (11th Cir 2017) established a fourth test, which the Court will call the

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strict statutory interpretation test.

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The first three tests, though detailed differently, fundamentally apply the same

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concepts. The fourth is an outlier, and severely limits the availability of habeas petitions

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under § 2241.

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o Constitutional Test

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First, the Second and Third Circuits have interpreted the “inadequate or

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ineffective” remedy to apply if denying the appeal would raise serious constitutional

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concerns. This test, though not as specific, encompasses the principles shared by the

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Ninth Circuit, in that “[s]ection 2255 is inadequate or ineffective to test the legality of

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detention in a case where the gatekeeping provisions bar a successive petitioner who can

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allege actual innocence of the crime of which he was convicted and who, at the time of

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his earlier petition(s), could not demonstrate that innocence.” In re Dorsainvil, 119 F.3d

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245, 252-53 (3rd Cir. 1999) (internal quotations omitted); see also Triestman v. United

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States, 124 F.3d 361, 380 (2nd Cir. 1997) (failing to permit petitioner to file successive §

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2255 when petitioner could now demonstrate innocence after change in law “would raise

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serious questions as to the constitutional validity of the AEDPA’s amendments to §

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2255”).

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o Unobstructed Procedural Shot Test

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A second but similar measurement used in the Fifth and Seventh Circuits—the

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unobstructed procedural shot test—also applies actual innocence and retroactivity.

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However, under the unobstructed procedural shot test, a collateral challenge is

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permissible only when established circuit court or Supreme Court precedent foreclosed

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raising the claims in the first § 2255 petition. This test requires that the law was “was

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firmly against [the petitioner]” at the time of filing the first § 2255 petition. In re

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Davenport, 147 F3d 605, 610 (7th Cir. 1998); Reyes-Requena, 243 F.3d at 893.
 Novelty Test

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The third test, employed by the Ninth Circuit, is broader than the unobstructed

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procedural shot. Like that test, the novelty test allows a petitioner to file a petition under

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§ 2241 when prior circuit or Supreme Court precedent was firmly against the petitioner.

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Harrison v. Ollison, 519 F.3d at 960. But the novelty test also finds a petitioner’s first

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motion for relief is ineffective or inadequate if petitioner did not raise an issue that was

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novel or unsupported by case law in the first § 2255 petition. Id. Under this test, the court

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considers “(1) whether the legal basis for the petitioner’s claim ‘did not arise until he had

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exhausted his direct appeal and first § 2255 motion;’ and (2) whether the law changed ‘in

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any way relevant’ to petitioner’s claim after that first § 2255 motion.” Id. (quoting Ivy,

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328 F.3d at 1060-61).

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As demonstrated, all three tests have fundamental similarities: actual innocence

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and retroactive change in law. However, the Eleventh Circuit’s newly-established test

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strays from this scheme, severely limiting a petitioner’s ability to file a successive habeas

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under § 2241.

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o Strict Statutory Interpretation Test

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In March of this year, the Eleventh Circuit overturned its own precedent, when the

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court in McCarthan v. Director of Goodwill Industries-Suncoast, Inc. found that a

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petitioner may only qualify under the savings clause if he was absolutely prohibited from

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raising his claim in his first § 2255. 851 F.3d at 1086-87. The McCarthan court’s

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interpretation of the savings clause does not consider whether case law—by the Circuit or

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Supreme Court—foreclosed the issue at the time of the petition, nor does it evaluate

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whether there was a subsequent change in law which rendered the defendant innocent of

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the conviction. Id. Although an outlier, the McCarthan court drew much of its analysis

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from the Tenth Circuit’s decision in Prost v. Anderson, 636 F.3d 578, 584-85 (10th Cir.

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2011). The court in Prost rejected both the novelty and unobstructed procedural shot

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tests, by comprehensively analyzing the history and text of § 2255. In an opinion written

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by then-Circuit Judge Neil Gorsuch, the court found that Congress was capable of

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including the challenges to actual innocence and retroactivity in the savings clause but

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did not, therefore the Tenth Circuit should not permit successive petitions in these

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instances. Id. at 586-87. Furthermore, Congress could have allowed successive § 2255

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petitions for challenges to statutory changes in the law made retroactive, but chose to

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only include constitutional changes. Id at 589. The court also emphasized the need for

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finality in sentencing. Id. It determined that these considerations prevailed against a

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petitioner who was able but failed to raise an issue in a first § 2255 petition—regardless

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of the support of existing case law. Id. And while the court did state that there may be

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instances where the limits on successive § 2255 petitions may raise serious constitutional

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questions, the court declined to elaborate on the circumstances in which this might occur.

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Id. at 594.

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Petitioner’s examples demonstrate some differences by circuit courts in applying

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the savings clause, but do not meet the grave uncertainty described by the Supreme Court

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in Johnson. For example, they establish neither “repeated attempts and failures to craft a

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principled and objective standard” nor “pervasive disagreement about the nature of the

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inquiry one is supposed to conduct and the kinds of factors one is supposed to consider.”

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See Johnson, 135 S.Ct. at 2260. Although how courts articulate the elements of a valid

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claim under the savings clause differ, for most circuits the fundamental elements remain.

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“The standards that these courts have articulated for the [escape hatch] may not be

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framed in identical terms, but the following basic features are evident in most

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formulations: actual innocence and retroactivity” of the law applicable to defendant’s

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conviction subsequent to defendant filing his first § 2255. Reyes-Requena, 243 F.3d at

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903. The Eleventh Circuit is a recent deviation from the norm, and one instance of

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aberration does not make the provision unconstitutionally vague. See e.g., Byers v.

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Warden, FCI Butner Medium II, 5:16-HC-2172-FL, 2017 WL 3725187, at *4 (E.D.N.C.

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Aug. 29, 2017) (Though not directly addressed by the circuit, the courts had never found

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the savings clause vague, and one instance of difficulty did not meet Johnson standards.)

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Though the Court acknowledges there is some disagreement between Circuit

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Courts about how to interpret the savings clause, the Court finds that it need not make a

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determination on the constitutional vagueness of the terms “ineffective or inadequate,”

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because the petition can be determined on narrower statutory grounds. See Bond v.

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United States, 134 S.Ct. 2077, 2087 (2014); Wood v. Georgia, 450 U.S. 261, 265-66

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(1981); see also White v. United States Pipe & Foundry Co., 646 F.2d 203, 206-07 (5th

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Cir. 1981) (vacating and remanding District Court decision determining constitutional

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issue when case could have been resolved on statutory grounds).

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An opinion by this Court on the vagueness issue would not change Petitioner’s

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position. Petitioner has admitted that even under the broadest interpretation of the escape

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hatch—the novelty test adopted by the Ninth Circuit—his previous § 2255 petition was

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neither inadequate nor ineffective. He has not claimed actual innocence or retroactivity.

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And voiding the savings clause as unconstitutionally vague does not change this. Absent

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the escape hatch provision, Petitioner’s only remedy is under the limitations on

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successive motions found in § 2255(h). To qualify, Petitioner is limited to filing a

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challenge to his sentence in the sentencing court, not in this Court. See Tripati v.

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Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Furthermore, he may only file if there is

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(1) newly discovered evidence demonstrating actual innocence, or (2) a new, retroactive

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rule of constitutional law, previously unavailable. 28 U.S.C. § 2255(h). Petitioner cannot

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meet these requirements. Even if, arguendo, the Court found the escape hatch provision

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unconstitutional, this would serve to ensure that the Court had no jurisdiction over

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Petitioner’s petition. This renders any decision by this Court merely advisory. No matter

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the stance, the Court cannot exercise jurisdiction over this matter.

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Accordingly, IT IS ORDERED:

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1. J.T. Shartle, Warden shall be substituted as Respondent for “Warden, USP

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Tucson” pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and Rule

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43(c)(2) of the Federal Rules of Appellate Procedure;

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2. Defendants’ Motion to Dismiss (Doc. 9) is GRANTED. Petitioner’s Petition

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Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus (Doc. 1) is DISMISSED for

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lack of jurisdiction.

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3. Although Petitioner has brought his claims in a § 2241 petition, a certificate of

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appealability is required where a § 2241 petition attacks the petitioner’s conviction

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or sentence. See Porter v. Adams, 244 F.3d 1006, 1007 (9th. Cir. 2001). Pursuant

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to Rule 11(a) of the Rules Governing Section 2255 Cases, in the event Movant

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files an appeal, the Court declines to issue a certificate of appealability because

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reasonable jurists would not find the Court’s procedural ruling debatable. See

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Dated this 22nd day of September, 2017.

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