Nolan McSwain v. R P Gutierrez

Filing 6

ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. 2241. Plaintiffs Petition is Dismissed 1 by Judge Dean D. Pregerson. (Made JS-6. Case Terminated.). (lc) Modified on 9/14/2016 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Nolan McSwain,

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Petitioner, )
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v.
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R.P. Gutierrez,
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Respondent. )
___________________________ )

Case
[CV
[CV
[CR

No. CV 13-5578 DDP
09-07606 DDP-CT]
06-01440 DDP]
92-00075 AAH]

ORDER DENYING MOTION FOR RELIEF
UNDER 28 U.S.C. § 2241

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Presently before the court is Petitioner Nolan McSwain

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(“Petitioner”)’s Petition for Writ of Habeas Corpus pursuant to

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28 U.S.C. § 2241(c)(3).

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by the parties and considered the arguments advanced therein, the

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court adopts the following Order denying the Petition.

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I.

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Having reviewed the materials submitted

Background
On February 8, 1993, Petitioner was found guilty by a jury

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of conspiracy to distribute cocaine in violation of 21 U.S.C §

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846 and possession with intent to distribute cocaine in violation

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of 21 U.S.C. § 841(a).

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sentenced to life imprisonment on December 6, 1993.

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129)

(CR Dkt. No. 72.)

Petitioner was
(CR Dkt. No.

On July 18, 1995, the Ninth Circuit Court of Appeals

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affirmed Petitioner’s conviction and sentence, holding, in part,

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that the trial court did not abuse its discretion in excusing two

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jurors.

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1995)(unpublished).

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United States v. McSwain, 65 F.3d 177 (9th Cir.

In 1997, Petitioner filed a habeas corpus petition pursuant

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to 28 U.S.C. § 2255, which this court denied.

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06-1440 DDP, Dkt. 10).

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for a certificate of appealability, which was denied by both the

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district court and the Ninth Circuit.

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(Return, Ex. A; CV

Petitioner proceeded to file a request

(Id.)

In 1999, Petitioner filed a habeas petition pursuant to 28

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U.S.C. § 2241.

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brought under 28 U.S.C. § 2241, was in fact a successive petition

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under 28 U.S.C. § 2255, and dismissed the petition.

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Petitioner was denied a certificate of appealability.

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Id.

The court found that the petition, though

Id.
Id.

In 2002, Petitioner filed a motion under Federal Rule of

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Civil Procedure 60(b).

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the motion to be a third successive § 2255 petition, and

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dismissed the motion.

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(CR Dkt. No. 168)

The court determined

(Order, Dkt. 182 p. 2)

In 2004, Petitioner filed another habeas petition under 28

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U.S.C. § 2241, and the district court once again denied the

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petition as a successive § 2255 petition.

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(Dkt. 173)

In 2006, Petitioner filed another petition under § 2241.

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(Dkt. 181; CV 6-1440)

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motion for lack of jurisdiction, again finding the petition to be

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a successive petition under § 2255.

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Dkt. 10.)

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This court issued an order dismissing the

(Dkt. No. 182; CV 06-1440,

The instant petition, like several of Petitioner’s other
motions, is styled as a petition pursuant to § 2241.
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As

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discussed below, Petitioner contends that his right to a fair

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trial was violated when the allegedly biased trial judge

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dismissed a particular juror.

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II.

(Pet. at 6.)

Discussion

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Defendant argues that Petitioner’s § 2241 petition is yet

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another successive § 2255 petition in disguise. (Return at 1.)

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Petitioner maintains that the instant petition is properly

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brought pursuant to § 2241 through the savings clause of § 2255.

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(Traverse at 7.)

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Generally, § 2241 petitions challenge the manner of

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execution of a sentence or conditions of confinement and § 2255

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provides the exclusive mechanism by which a federal prisoner may

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challenge the legality of his conviction or sentence. See

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Harrison v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008); Ivy v.

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Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003); Porter v. Adams,

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244 F.3d 1006, 1007 (9th Cir. 2001). However, under the “savings

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clause” or “escape hatch” contained in § 2255, a federal prisoner

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may challenge a sentence pursuant to § 2241 if he can show that §

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2255 is “inadequate or ineffective to test the legality of his

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detention.” Ivy, 328 F.3d at 1059 (internal quotations omitted);

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Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000).

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Here, Petitioner attacks the validity of his conviction

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rather than the manner of execution of his sentence.

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Specifically, Petitioner argues that the district court judge’s

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removal of two quarreling jurors, including the only black juror,

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constituted judicial bias and violated Petitioner’s

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constitutional right to due process. (Pet. at 6, 9; Return at 9.)

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This is not a challenge to the “manner, location, or conditions
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of a sentence’s execution,” as generally required by § 2241. See

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Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per

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curiam). Thus, unless the savings clause applies, § 2255, and not

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§ 2241, is the appropriate vehicle for review. See United States

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v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (“A federal prisoner

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authorized to seek relief under § 2255 may not petition for

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habeas corpus relief pursuant to § 2241.”)

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The Ninth Circuit has held that a petition meets the savings
clause criteria of § 2255 when the petitioner “(1) makes a claim

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of actual innocence, and (2) has not had an unobstructed

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procedural shot at presenting that claim.” Stephens v. Herrera,

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464 F.3d 895, 898 (9th Cir. 2006); see Alaimalo v. United States,

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645 F.3d 1042 (9th Cir. 2011).

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neither claim, and Petitioner fails to allege any facts that

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would satisfy § 2255's savings clause and permit him to bring his

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claim pursuant to § 2241.1

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considered under § 2255 rather than § 2241.

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The instant petition makes

The petition is, therefore, properly

As recounted above, Petitioner has filed five previous

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petitions under § 2255.

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Federal courts may only entertain a second or successive § 2255

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petition if the petitioner first obtains the permission of the

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court of appeals to file the motion with the district court. See

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28 U.S.C. §§ 2255; 2244 (3)(A); Barapind v. Reno, 225 F.3d 1100,

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1110 (9th Cir. 2000).

The instant petition is the sixth.

Here, Petitioner did not request, let

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Even if he Plaintiff had so argued or alleged, the Ninth
Circuit has concluded that the escape hatch is unavailable to
Petitioners who assert that judicial bias renders § 2255 relief
inadequate or ineffective. See Tripati v. Henman, 843 F.2d 1160,
1163 (9th Cir. 1988).
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alone obtain, the requisite certification from the Ninth Circuit

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prior to filing this successive § 2255 motion. Instead,

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Petitioner filed the instant petition directly with this court.

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Because Petitioner failed to comply with the procedural

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requirements for filing a successive petition, this court lacks

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jurisdiction to consider the merits of the claim, which must

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therefore be dismissed.

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661, 664 (9th Cir. 1998).

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III. CONCLUSION

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See United States v. Allen, 157 F.3d

For the reasons stated above, Plaintiff’s petition is
DISMISSED.

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IT IS SO ORDERED.

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Dated: Septmber 13, 2016
DEAN D. PREGERSON
United States District Judge

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