Judy N. Green v. L. Milusnic

Filing 3

ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR LACK OF JURISDICTION by Magistrate Judge Frederick F. Mumm. Response to Order to Show Cause due by 2/26/2014. (see attached) (jm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JUDY N. GREEN,
Petitioner,

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v.

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L. MILUSNIC, Warden,
Respondent.

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No. CV 14-629 JGB (FFM)
ORDER TO SHOW CAUSE WHY
ACTION SHOULD NOT BE
DISMISSED FOR LACK OF
JURISDICTION

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I. BACKGROUND

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Petitioner Judy N. Green, a prisoner in the custody of the United States

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Penitentiary-Victorville located in Adelanto, California, challenges a conviction in the

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United States District Court for the Northern District of California (Case No. CR 05-

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0208 WHA) by means of these proceedings. On or about January 20, 2014, petitioner

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constructively filed an action styled as “Petition for Writ of Habeas Corpus by a

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Person in Federal Custody (28 U.S.C. § 2241)” (hereinafter “Petition”).

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Petitioner challenges her conviction and sentence on a number of grounds all of

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which (with the exception of Grounds Eight, Nine and Ten, which appear to challenge

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the District Judge’s denial of petitioner’s 2255 motion and denial of a Certificate of

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Appealability) relate to the trial and pretrial proceedings which took place in 2007 and

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2008.

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II. DISCUSSION

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A.

Subject Matter Jurisdiction
“In general, § 2255 provides the exclusive procedural mechanism by which a

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federal prisoner may test the legality of [his] detention.” Lorentsen v. Hood, 223 F.3d

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950, 953 (9th Cir. 2000). Pursuant to 28 U.S.C. § 2244(b), a petitioner may not file a

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second or successive § 2255 motion without first obtaining authorization by the

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appropriate court of appeals. 28 U.S.C. § 2244(b)(3)(A); Moore v. Reno, 185 F.3d

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1054, 1055 (9th Cir. 1999). The circuit court will not authorize a second or successive

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petition unless:

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(A) the applicant shows that the claim relies on a new rule of

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constitutional law, made retroactive to cases on collateral review by the

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Supreme Court that was previously unavailable, or

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(B)(i) the factual predicate of the claim could not have been discovered

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previously through the exercise of due diligence; and

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(ii) the facts underlying the claim, if proven and viewed in light of the

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evidence as a whole, would be sufficient to establish by clear and

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convincing evidence that, but for constitutional error, no reasonable

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factfinder would have found the applicant guilty of the underlying

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offense.

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28 U.S.C. § 2244(b)(2). Moore, 185 F.3d at 1055.
The rules, however, provide an escape hatch or safety clause to this procedural

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bar. A federal prisoner may file a habeas petition pursuant to § 2241 to contest the

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legality of his sentence or conviction where his remedy under § 2255 is inadequate or

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

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864-65 (9th Cir. 2000); United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). The

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procedural bar from raising second or successive § 2255 motions, however, does not

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render a § 2255 remedy inadequate or ineffective. Lorentsen, 223 F.3d at 953; Moore,

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185 F.3d at 1055. Rather, § 2255 may provide an inadequate or ineffective remedy
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when the petitioner: (1) claims actual innocence; and (2) has never had an

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“unobstructed procedural shot” at presenting the claim. Ivy v. Pontesso, 328 F.3d

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1057, 1060 (9th Cir. 2003) (adopting the two-part test used by other circuits). In

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determining whether a petitioner had an unobstructed procedural shot to pursue a

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claim, the court examines whether: (1) the legal basis of the claim did not arise until

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after he exhausted the direct appeal and § 2255 motion; and (2) the law changed in any

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way relevant to a petitioner’s claim after the § 2255 motion. Harrison v. Ollison, 519

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F.3d 952, 960 (9th Cir. 2008).

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Thus, a court must first determine whether jurisdiction is proper, by determining

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whether the application is filed pursuant to § 2241 or § 2255, before proceeding to the

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merits. Id. at 961-62 (affirming the district court dismissal of the § 2241 habeas

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petition for lack of jurisdiction because it was actually a § 2255 motion); Hernandez,

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204 F.3d at 865 (remanding the case to the district court to conduct a jurisdictional

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determination).

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1.

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The Court need not address whether petitioner raises an actual innocence claim

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if petitioner, in any event, cannot show that she never had an unobstructed procedural

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shot at raising her claims. In order for petitioner to make such a showing, she must

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establish that she has never had the opportunity to raise her claims by motion. Ivy, 328

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F.3d at 1060. The Petition does not explain why petitioner could not have raised her

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claims in a previous § 2255 motion. Accordingly, it does not appear that the Petition

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falls within the escape hatch.

The Petition Does Not Appear to Fall Under the Escape Hatch

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2.

The Court Appears to Lack Jurisdiction Over the Petition

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If the escape hatch does not apply, petitioner’s filing must be treated as § 2255

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motion. As the custodial court, the Court does not have jurisdiction over such a

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motion. Jurisdiction for § 2255 motions lies in the district where the petitioner was

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sentenced. Hernandez, 204 F.3d at 864. Given that petitioner previously has pursued

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a § 2255 motion and has not obtained authorization from the court of appeals to pursue
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a successive § 2255 motion, it would be futile for this Court to transfer the matter to

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the sentencing court. Therefore, dismissal of the Petition without prejudice for lack of

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jurisdiction appears to be appropriate.

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B.

Before Dismissing the Petition, the Court Will Provide Petitioner with an

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Opportunity to Demonstrate that the Escape Hatch Applies.

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Petitioner should be given an opportunity to demonstrate why the Petition

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should not be dismissed before he suffers dismissal. Therefore, petitioner is ordered to

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show cause in writing, if any she has, why the Petition should not be dismissed for lack

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of jurisdiction within 21 days of the date of this order. If petitioner does not timely

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demonstrate such cause, the Court will issue a Report and Recommendation

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recommending that the Petition be dismissed without prejudice for lack of jurisdiction.

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DATED: February 5, 2014

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/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge

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