Nicholas Queen v. David Shinn
MINUTES (IN CHAMBERS) Order to Show Cause Why this Action Should Not Be Dismissed for Lack of Jurisdiction by Magistrate Judge Kenly Kiya Kato. Response to Order to Show Cause due by 3/10/2017. (SEE ORDER FOR DETAILS) (Attachments: # 1 Notice of Dismissal Form) (dts)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CV 17-1191-JFW (KK)
Date: February 17, 2017
Title: Nicholas Queen v. David Shinn
Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
Attorney(s) Present for Petitioner:
Attorney(s) Present for Respondent:
(In Chambers) Order to Show Cause Why this Action Should Not Be
Dismissed for Lack of Jurisdiction
Following a jury trial in the United States District Court for the District of Maryland,
Petitioner Nicholas Queen (“Petitioner”) was found guilty of two counts of bank robbery by
intimidation under 18 U.S.C. § 2113(d), two counts of armed bank robbery in violation of 18
U.S.C. § 2113(f), and two counts of carrying a firearm during the commission of a crime of
violence under 18 U.S.C. § 924(c). ECF Docket No. (“Dkt.”) 1 at 2; see also United States v.
Queen, 73 F.3d 359, 1995 WL 756347 *1 (D. Md. 1995). 1 He was sentenced on September 30,
1994 to a 562-month term of incarceration. Dkt. 1 at 2; see also USA v. Queen, 1:93-cr-00366WMN-1 (D. Md., filed Aug. 31, 1993).
A court “may take judicial notice of matters of public record,” including of
“proceedings and filings” in other cases and “in other courts, both within and without the
federal judicial system, if those proceedings have a direct relation to matters at issue.” Lee v.
City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (citations omitted); United States ex rel.
Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
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Petitioner appealed his conviction and sentence to the United States Court of Appeals for
the Fourth Circuit. Queen, 73 F.3d 359. On December 21, 1995, Petitioner’s conviction was
Since 1997, Petitioner has filed over a dozen pleadings challenging his conviction and
sentence in the sentencing and custodial courts. See United States v. Queen, 93-cr-0366-WMN,
2012 WL 1107176, at *1 (D. Md. Mar. 30, 2012) (listing cases). Petitioner’s first Motion to
Vacate pursuant to 28 U.S.C. § 2255 (“Section 2255”) was denied and dismissed on the merits
on May 8, 1997. See Queen v. United States of America, 97-1184-HMN (D. Md. 1997).
On June 21, 2016, the Fourth Circuit issued an Order granting Petitioner authorization to
file a successive Section 2255 motion. Queen, 1:93-cr-00366-WMN-1 at Dkt. 300. The court
found Petitioner “made a prima facie showing that the new rule of constitutional law announced
in Johnson v. United States, 135 S. Ct. 2551 (2015), and held to apply retroactively to cases on
collateral review by Welch v. United States, 136 S. Ct. 1257 (2016), may apply to his case.” Id.
Hence, Petitioner’s motion to vacate his 1994 conviction and sentence pursuant to Section 2255
(“Maryland Section 2255 Motion”) was filed in the Maryland District Court on June 21, 2016,
where it is still pending. Id. at Dkt. 301.
On February 6, 2017, Petitioner constructively filed2 the instant pro se Petition for Writ of
Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241 (“Section 2241”) in this Court,
challenging his 1994 conviction and sentence. Dkt. 1, Pet. As in his Maryland Section 2255
Motion, Petitioner asserts the statute under which he was convicted and sentenced contain the
language, “crime of violence,” which is unconstitutionally vague under the reasoning of Johnson
v. United States, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015) (holding the “residual clause” of 18
U.S.C. § 924(e) was unconstitutionally vague) and Welch v. United States, 136 S. Ct. 1257, 194
L. Ed. 2d 387 (2016) (holding Johnson should be applied retroactively). Id.
A petitioner challenging “the manner, location, or conditions of a sentence’s execution”
must file a petition for writ of habeas corpus under Section 2241 in the custodial court. Harrison
v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). On the other hand, Section 2255 “provides the
exclusive procedural mechanism by which a federal prisoner may test the legality of detention.”
Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). A petitioner challenging “the legality of
his sentence” must file a motion to vacate his sentence under Section 2255 and “[Section] 2255
Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to
mail to court, the Court deems the pleading constructively filed on the date it is signed. Roberts
v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted).
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motions must be heard in the sentencing court.” Hernandez v. Campbell, 204 F.3d 861, 864-65
(9th Cir. 2000).
There is, however, an exception to this general rule that a Section 2255 challenge to the
legality of detention must be filed in the sentencing court. Under the “escape hatch” of Section
2255, a federal prisoner may challenge the legality of detention in the custodial court if, and only
if, the remedy under Section 2255 in the sentencing court is “inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e); Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.
2006). A prisoner may file under Section 2255’s escape hatch in the custodial court “when the
prisoner ‘(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural
shot at presenting that claim.’” Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012) (quoting
Stephens, 464 F.3d at 898).
With respect to the first prong of Section 2255’s escape hatch, an actual innocence claim
requires a petitioner to “demonstrate that, in light of all the evidence, it is more likely than not
that no reasonable juror would have convicted him.” Stephens, 464 F.3d at 898 (citing Bousley
v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)). With respect to the
second prong of Section 2255’s escape hatch, whether the petitioner has not had an
“unobstructed procedural shot” at presenting his actual innocence claim, the Court must
consider: “(1) whether the legal basis for petitioner’s claim did not arise until after he had
exhausted his direct appeal and first [Section] 2255 motion; and (2) whether the law changed in
any way relevant to petitioner’s claim after that first [Section] 2255 motion.” Alaimalo v. United
States, 645 F.3d 1042, 1047 (9th Cir. 2011) (internal quotation marks omitted).
Here, Petitioner does not challenge “the manner, location, or conditions of a sentence’s
execution.” See Harrison, 519 F.3d at 956. Rather, Petitioner challenges the legality of his 1994
conviction and sentence. See Dkt. 1, Pet. Thus, Petitioner cannot proceed in this Court, the
custodial court, unless Section 2255’s “escape hatch” provision applies. Lorentsen, 223 F.3d at
953. Applying the two prongs of Section 2255’s escape hatch, the Court finds the Petition does
not qualify for the exception. Harrison, 519 F.3d at 959.
This Court Need Not Decide Whether Petitioner Demonstrates Actual
Petitioner concedes he was not convicted or sentenced under the residual clause of 18
U.S.C. § 924(e) held unconstitutional in Johnson. See Dkt. 1, Pet. However, Petitioner asserts
he is actually innocent because Johnson and Welch should extend to the statute under which he
was convicted and sentenced. See id. Notably, there is a current split among federal courts on
whether, and to what extent, Johnson and Welch apply to other federal statutes. See United
States v. Taylor, 814 F.3d 340, 375-76 (6th Cir. 2016) (holding “crime of violence” language in
18 U.S.C. § 924(c)(3) is not unconstitutionally vague “[b]ecause § 924(c)(3)(B) is considerably
narrower than the statute invalidated by the Court in Johnson, and because much of Johnson’s
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analysis does not apply to § 924(c)(3)(B)”); United States v. Gonzalez-Longoria, No. 15-40041,
2016 WL 4169127, at *1 (5th Cir. Aug. 5, 2016) (holding 18 U.S.C. § 16(b)’s “crime of violence”
language “is not unconstitutionally vague”). But see United States v. Edmundson, 153 F. Supp.
3d 857, 862 (D. Md. 2015), as amended (Dec. 30, 2015) (extending Johnson and holding 18
U.S.C. § 924(c)’s “crime of violence” language suffered “from impermissible vagueness”);
Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (extending Johnson and holding 18 U.S.C.
§ 16(b)’s “crime of violence” language is “unconstitutionally vague”). Indeed, the United
States Supreme Court will consider whether Johnson should be extended to the United States
Sentencing Guidelines, section 4B1.2(a)(2) (defining “crime of violence”) in a pending case,
Beckles v. United States, __ U.S. __, 136 S. Ct. 2510, 2511, 195 L. Ed. 2d 838 (2016) (cert.
granted Jun. 27, 2016). See also In re: Embry, No. 16-5447, 2016 WL 4056056, at *4 (6th Cir.
July 29, 2016) (holding in abeyance Section 2255 motion raising Johnson pending Beckles
because “[a]fter the Supreme Court resolves some or (hope springs eternal) all of these
questions, the district courts will be well positioned to handle these cases fairly and efficiently”).
Hence, it is currently unclear as to whether the reasoning set forth in Johnson extends to the
statute under which Petitioner was convicted and sentenced.
Nonetheless, as discussed below, it is clear Petitioner fails the escape hatch’s second
prong. Thus, the Court need not decide whether Petitioner demonstrates actual innocence to
fulfill the escape hatch’s first prong. Ivy v. Pontesso, 328 F.3d 1057, 1061 (9th Cir. 2003) (“To
the extent that Ivy may have a viable claim of innocence, something we do not decide, he has not
been denied an unobstructed procedural opportunity to present it. For that reason, § 2255 does
not provide an inadequate or ineffective remedy.”).
Petitioner Fails to Demonstrate He Lacks an Unobstructed Procedural Shot
to Raise His Claim
Because Petitioner’s Maryland Section 2255 Motion is still pending, Petitioner cannot
show he lacks an unobstructed procedural shot to raise his claim because “[h]e must never have
had the opportunity to raise it by motion” to qualify for the escape hatch. Ivy, 328 F.3d at 1060;
see Sperow v. United States, No. CV 13-4244-DMG (JCG), 2013 WL 6910415, at *2 n.2 (C.D.
Cal. Dec. 31, 2013) (stating “because Petitioner’s § 2255 motion in Idaho District Court remains
pending, there is no basis for the Court to find that Petitioner had no remedy under § 2255”).
Petitioner thus fails to qualify for Section 2255’s escape hatch, and this Court lacks
jurisdiction to entertain the matter. Harrison, 519 F.3d at 959. Therefore, as the Court lacks
jurisdiction, the Court is inclined to dismiss this action. Hernandez, at 864-65.
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Accordingly, the Court hereby ORDERS Petitioner to file a written response as to why
this action should not be dismissed for lack of jurisdiction no later than twenty-one (21) days
after the date of this Order. In the response, Petitioner must elect one of the following three
1. If Petitioner contends his action is not a Section 2255 challenge to the legality of detention
that should be heard in the sentencing court, but is instead challenging the manner,
location, or conditions of a sentence’s execution, he should clearly explain this in a filing
with this Court no later than twenty-one (21) days after the date of this Order.
Petitioner should attach copies of any documents that support his position.
2. If Petitioner contends his action challenges the legality of detention and is properly before
this Court as the custodial court under the Section 2255 escape hatch, he should clearly
explain this in a filing with this Court no later than twenty-one (21) days after the date
of this Order. Petitioner should attach copies of any documents that support his
3. If Petitioner wishes to withdraw his Petition, he may request a voluntary dismissal of this
action without prejudice pursuant to Federal Rule of Civil Procedure 41(a), which must
be served and filed no later than twenty-one (21) days after the date of this Order. A
Notice of Dismissal form is attached for Petitioner’s convenience. The Court advises
Petitioner, however, that if Petitioner should later attempt to raise his dismissed claims in
a subsequent habeas petition or Section 2255 motion, those claims may be time-barred,
and may be barred as successive.
The Court warns Petitioner that failure to timely respond as directed in this Order
will result in dismissal of this action without prejudice for lack of jurisdiction, and failure to
prosecute and obey court orders.
IT IS SO ORDERED.
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