Ellis McHenry v. David Shinn

Filing 23

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Fernando M. Olguin for Report and Recommendation (Issued) 21 . IT IS ORDERED that Judgment be entered denying and dismissing the Petition without prejudice. (Attachments: # 1 R&R) (dml)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ELLIS McHENRY, ) ) Petitioner, ) ) v. ) ) DAVID SHINN, Warden, ) ) ) Respondent. ) ______________________________) NO. ED CV 16-1758-FMO(E) REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 17 18 This Report and Recommendation is submitted to the Honorable 19 Fernando M. Olguin, United States District Judge, pursuant to 28 20 U.S.C. section 636 and General Order 05-07 of the United States 21 District Court for the Central District of California. 22 23 PROCEEDINGS 24 25 On August 17, 2016, Petitioner filed a “Petition for Writ of 26 Habeas Corpus By a Person in Federal Custody.” 27 Respondent filed “Respondent’s Motion to Dismiss or Transfer Petition 28 for Writ of Habeas Corpus, etc.” (“Motion to Dismiss”). On October 11, 2016, On 1 October 12, 2016, the Magistrate Judge ordered Petitioner to file an 2 opposition to the Motion to Dismiss within thirty days of October 12, 3 2016, and warned that failure to file timely opposition could result 4 in the denial and dismissal of the Petition. 5 6 The Magistrate Judge did not receive any opposition to the Motion 7 to Dismiss before, on, or days after the deadline for opposition. 8 Accordingly, on November 17, 2016, the Magistrate Judge issued a 9 Report and Recommendation recommending denial and dismissal of the 10 Petition without prejudice for failure to prosecute. 11 12 On November 21, 2016, however, the Magistrate Judge received 13 “Petitioner’s Reply Opposing Defendants [sic] Motion to Dismiss” 14 (“Opposition”). 15 withdrew the November 17, 2016 Report and Recommendation. On November 21, 2016, the Magistrate Judge sua sponte 16 17 BACKGROUND 18 19 In 1993, in the United States District Court for the Northern 20 District of Ohio, a jury found Petitioner guilty of three counts of 21 carjacking in violation of 18 U.S.C. section 2119, three counts of 22 using or carrying a firearm in relation to a crime of violence 23 (carjacking) in violation of 18 U.S.C. section 924(c) and one count of 24 receipt and possession of a firearm by an illegal alien in violation 25 of 18 U.S.C. section 922(g)(5) (Petition, second page 1; Respondent’s 26 Lodgment 3, p. 3; see United States v. McHenry, 38 F.3d 1217, at *1-2 27 (1994) (unpublished), cert. denied, 514 U.S. 1179 (1995). 28 verdict, the trial court vacated the section 924(c) counts. 2 After the See 1 United States v. McHenry, 38 F.3d 1217, at *1; United States v. 2 McHenry, 830 F. Supp. 1025 (N.D. Ohio 1993). 3 challenging the sufficiency of the evidence, and the Government also 4 appealed. 5 United States Court of Appeals for the Sixth Circuit reversed the 6 order vacating the section 924(c) counts and remanded for resentencing 7 on those counts, but otherwise affirmed the judgment. 8 The United States Supreme Court denied certiorari. 9 States, 514 U.S. 1179 (1995). Petitioner appealed, See United States v. McHenry, 38 F.3d 1217, at *1. The See id. at 2-3. McHenry v. United 10 11 Following resentencing, Petitioner appealed, challenging the 12 constitutionality of the federal carjacking statute. 13 States v. McHenry, 97 F.3d 125 (6th Cir. 1996), cert. denied, 519 U.S. 14 1131 (1997). 15 affirmed the judgment. 16 denied certiorari. 17 (1997). See United The United States Court of Appeals for the Sixth Circuit See id. The United States Supreme Court See McHenry v. United States, 519 U.S. 1131 18 19 In 1998, Petitioner filed in the sentencing court a petition for 20 writ of coram nobis, a motion to correct an allegedly excessive 21 sentence and a petition for writ of prohibition. 22 States v. McHenry, United States District Court for the Northern 23 District of Ohio case number 1:93-cr-00084-DDD.1/ 24 court denied Petitioner’s motion and petitions. See Docket in United The sentencing See id. 25 26 27 28 1 The Court takes judicial notice of Petitioner’s criminal case and related proceedings, described herein, available on the PACER database at www.pacer.gov. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records). 3 1 In 2001, Petitioner filed in the sentencing court a motion to 2 vacate pursuant to 28 U.S.C. section 2255. 3 in McHenry v. United States, United States District Court for the 4 Northern District of Ohio case number 1:01-cv-01607-DDD; Respondent’s 5 Exhibit 7. 6 See Docket in McHenry v. United States, United States District Court 7 for the Northern District of Ohio case number 1:01-cv-01607-DDD. See id.; see also Docket On March 15, 2002, the sentencing court denied the motion. 8 9 On August 25, 2008, Petitioner filed in the sentencing court a 10 “Motion to Modify the Term of Imprisonment” pursuant to 18 U.S.C. 11 section 3582(c), which the sentencing court denied on August 28, 2008. 12 See Docket in United States v. McHenry, United States District Court 13 for the Northern District of Ohio case number 1:93-cr-00084-DDD. 14 United States Court of Appeals for the Sixth Circuit affirmed in 2010. 15 See id. (see also Respondent’s Lodgment 12). 16 denied a second section 3582 motion and a motion for reconsideration 17 on September 23, 2008. The The sentencing court See id. (see also Respondent’s Lodgment 11). 18 19 On June 26, 2015, the United States Supreme Court issued its 20 decision in Johnson v. United States, 135 S. Ct. 2551 (2015) 21 (“Johnson”). 22 clause” of the federal Armed Career Criminal Act, 18 U.S.C. section 23 924(e)(2)(B). 24 of 18 U.S.C. section 924(e)(1) to include any felony that “involves 25 conduct that presents a serious potential risk of physical injury to 26 another.” 27 that Johnson announced a substantive rule of law which applies 28 retroactively on collateral review. The Johnson decision held unconstitutional the “residual That clause had defined “violent felony” for purposes On April 18, 2016, the United States Supreme Court held 4 Welch v. United States, 136 S. 1 Ct. 1257 (2016). 2 PETITIONER’S CONTENTIONS 3 4 5 Petitioner seeks to challenge the three firearm enhancements that 6 were imposed pursuant to 18 U.S.C. section 924(c). 7 authorizes the imposition of a sentence enhancement where any person 8 “during and in relation to any crime of violence” uses or carries a 9 firearm, or possesses a firearm in furtherance of any such crime. 10 Section 924(c)(3) defines a “crime of violence” as a felony that: 11 (A) “has as an element the use, attempted use, or threatened use of 12 physical force against the person or property of another”; or (B) “by 13 its nature, involves a substantial risk that physical force against 14 the person or property of another may be used in the course of 15 committing the offense.” 16 “force clause” and the second clause is commonly known as the 17 “residual clause.” 18 Section 924(c) The first clause is commonly known as the See United States v. Baires-Reyes, F. Supp. 3d , 2016 WL 3163049, at *1 (N.D. Cal. June 7, 2016). 19 20 Petitioner contends that the “force clause” did not apply in his 21 case because, under the definition of carjacking in effect at the time 22 of Petitioner’s conviction,2/ carjacking assertedly did not 23 necessarily involve the “use, attempted use, or threatened use of 24 25 26 27 28 2 See former 28 U.S.C. § 2119, Title I, § 101(a), 106 Stat. 3384 (Oct. 25, 1992). The statute was amended, effective September 13, 1994, to add the element that the carjacking be committed “with the intent to cause death or serious bodily harm.” See Pub.L. 103-322, Title VI, § 600003(a)(14), 108 Stat. 1796, (Sept. 13, 1994). 5 1 physical force against the person or property of another” within the 2 meaning of section 924(c)(3)(A) (see Opposition, ECF Dkt. No. 17, pp. 3 13-16). 4 “residual clause” of section 924(c)(3)(B) on the ground that the 5 clause allegedly is materially indistinguishable from the clause held 6 unconstitutional in Johnson. Petitioner also challenges the constitutionality of the 7 DISCUSSION 8 9 10 A federal prisoner who contends that his or her conviction or 11 sentence is subject to collateral attack “may move the court which 12 imposed the sentence to vacate, set aside or correct the sentence.” 13 28 U.S.C. § 2255. A prisoner must bring a section 2255 motion in the 14 sentencing court. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 15 2000); 28 U.S.C. § 2255(a). 16 habeas petition under 28 U.S.C. section 2241 for a section 2255 17 motion. 18 897-99 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007); Hernandez 19 v. Campbell, 204 F.3d at 864. A prisoner generally may not substitute a See 28 U.S.C. § 2255; see Stephens v. Herrera, 464 F.3d 895, 20 21 An application for a writ of habeas corpus in behalf of a 22 prisoner who is authorized to apply for relief by motion 23 pursuant to this section, shall not be entertained if it 24 appears that the applicant has failed to apply for relief, 25 by motion, to the court which sentenced him, or that such 26 court has denied him relief, unless it also appears that the 27 remedy by motion is inadequate or ineffective to test the 28 legality of his detention. 6 1 28 U.S.C. § 2255(e); see Stephens v. Herrera, 464 F.3d at 897-99; 2 Hernandez v. Campbell, 204 F.3d at 864. 3 for, and has been denied, section 2255 relief in the sentencing court. Here, Petitioner has applied 4 5 “Under the savings clause of § 2255, however, a federal prisoner 6 may file a habeas corpus petition pursuant to § 2241 to contest the 7 legality of a sentence where his remedy under section 2255 is 8 ‘inadequate or ineffective to test the legality of his detention.’” 9 Hernandez v. Campbell, 204 F.3d at 864-65; see also Stephens v. 10 Herrera, 464 F.3d at 897. 11 2255 exclusivity is a “narrow” exception. 12 1057, 1059-60 (9th Cir.), cert. denied, 540 U.S. 1051 (2003); United 13 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). 14 success in the sentencing court does not render the section 2255 15 remedy “inadequate or ineffective.” 16 229, 230 (9th Cir. 1972), cert. denied, 410 U.S. 912 (1973); see 17 Tripati v. Henman, 843 F.2d 1160, 1162-63 (9th Cir.), cert. denied, 18 488 U.S. 982 (1988). 19 prisoner/movant incarcerated in a district different from the 20 sentencing district could pursue a repetitive section 2241 petition in 21 the district of incarceration. 22 the inadequacy or ineffectiveness of the Section 2255 remedy. 23 Gholston v. Adams, 26 Fed. App’x 767, 768 (9th Cir. 2002); Redfield v. 24 United States, 315 F.2d 76, 83 (9th Cir. 1963). This “savings clause” exception to section Ivy v. Pontesso, 328 F.3d Mere lack of Boyden v. United States, 463 F.2d If the rule were otherwise, every disappointed Petitioner bears the burden of proving See 25 26 Under the savings clause, a federal prisoner may file a section 27 2241 petition under the savings clause only if the prisoner “(1) makes 28 a claim of actual innocence, and (2) has not had an unobstructed 7 1 procedural shot at presenting that claim.” Marrero v. Ives, 682 F.3d 2 1190, 1192 (9th Cir. 2012), cert. denied, 133 S. Ct. 1264 (2013) 3 (citation and internal quotations omitted). 4 5 For the reasons discussed below, Petitioner has not shown he 6 lacked an “unobstructed procedural shot” at presenting his claims. 7 Therefore, the Court need not and does not determine whether 8 Petitioner has shown “actual innocence” of his sentence. 9 generally Marrero v. Ives, 682 F.3d at 1193-95 (claim that petitioner 10 was wrongly classified as a career offender did not entail a claim of 11 actual innocence; noting cases in other circuits holding that a 12 petitioner generally cannot assert a cognizable claim of actual 13 innocence of a noncapital sentencing enhancement). See 14 15 First, with respect to Petitioner’s “force clause” claim, 16 Petitioner could have asserted this claim on appeal or in his prior 17 section 2255 petition. 18 (6th Cir. 1994) (“Armed carjacking is a specific crime of violence 19 carrying a nonmandatory sentence.”); see also United States v. 20 Mohammed, 27 F.3d 815, 819 (2d Cir.), cert. denied, 513 U.S. 975 21 (1994) (“It is clear that a violation of section 2119, the carjacking 22 statute, is a crime of violence within the meaning of section 23 924(c).”); United States v. Singleton, 16 F.3d 1419, 1423 (5th Cir. 24 1994) (“Carjacking is always and without exception a “crime of 25 violence” as that term is defined in 18 U.S.C. § 924(c)(3).”); United 26 States v. Jones, 34 F.3d 596, 601-02 (8th Cir. 1994), cert. denied, 27 514 U.S. 1067 (1995) (“Carjacking . . . is a crime of violence”) 28 (citations omitted). See United States v. Johnson, 22 F.3d 106, 108 Indeed, Petitioner made a related argument in 8 1 his second appeal, contending that the Double Jeopardy Clause barred 2 the imposition of punishment both for the carjacking convictions and 3 for the section 924(c) enhancements. 4 argument, citing, inter alia, United States v. Johnson, 22 F.3d 106 5 (6th Cir. 1994). 6 1994) (unpublished), cert. denied, 514 U.S. 1179 (1995). The Sixth Circuit rejected this See United States v. McHenry, 38 F.3d 1217 (6th Cir. 7 8 9 Second, with respect to Petitioner’s “residual clause” claim, as discussed below, even assuming arguendo Petitioner’s claim was 10 unavailable for assertion in a section 2255 petition prior to the 11 issuance of Johnson, the argument is now available to Petitioner by 12 means of a second section 2255 motion. 13 14 “Second or successive section 2255 motions are subject to the 15 gatekeeping procedures ‘provided in [28 U.S.C. section] 2244.’” 16 v. United States, 778 F.3d 762, 764 (9th Cir.), cert. denied, 136 S. 17 Ct. 256 (2015). 18 seeking to file a “second or successive” habeas petition first obtain 19 authorization from the Court of Appeals. 20 F.3d 814, 817 (9th Cir. 2014); 28 U.S.C. § 2244(b)(3)(C). 21 federal prisoner may not file a second or successive § 2255 petition 22 unless he or she makes a prima facie showing to the appropriate court 23 of appeals that the petition is based on: (1) ‘a new rule,’ (2) ‘of 24 constitutional law,’ (3) ‘made retroactive to cases on collateral 25 review by the Supreme Court,’ (4) ‘that was previously unavailable.’” 26 Ezell v. United States, 778 F.3d at 765 (citations and footnote 27 omitted); 28 U.S.C. § 2244(b)(3)(C); 28 U.S.C. § 2255(h)(2). 28 /// Ezell Section 2244(b)(3)(A) requires that a petitioner 9 Hughes v. United States, 770 “[A] 1 The Supreme Court recently deemed Johnson to be a new rule of 2 substantive constitutional law retroactively applicable on collateral 3 review. 4 Therefore, Petitioner may now file an application in the United States 5 Court of Appeals for the Sixth Circuit seeking authorization to bring 6 his Johnson claim in a second or successive section 2255 motion in the 7 sentencing court. 8 (9th Cir. 2016) (granting application to file second or successive 9 section 2255 motion based on Johnson); In re Pinder, 824 F.3d 977 See Welch v. United States, 136 S. Ct. 1257 (2016). See, e.g., Orona v. United States, 826 F.3d 1196 10 (11th Cir. 2016) (granting application to file second or successive 11 section 2255 motion based on claim that Johnson invalidated section 12 924(c)(3)(B) residual clause; noting that three other circuits had 13 granted applications in such cases); In re Patrick, 833 F.3d 584 (6th 14 Cir. 2016) (granting application to file second or successive section 15 2255 motion based on claim that Johnson invalidated federal Sentencing 16 Guidelines’ residual clause); In re Watkins, 810 F.3d 375 (6th Cir. 17 2015) (pre-Welch grant of application to file second or successive 18 section 2255 motion based on Johnson claim); but see In re Fields, 826 19 F.3d 785 (5th Cir. 2016) (denying application to file second or 20 successive section 2255 motion asserting claim that Johnson 21 invalidated section 924(c)(3)(B)). 22 23 The Sixth Circuit recently rejected on the merits a Johnson 24 challenge to the constitutionality of section 924(c)(3)(B). 25 United States v. Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016), pet. 26 for cert. filed (No. 16-6392) (Oct. 6, 2016). 27 irrelevant to a consideration of whether [a petitioner’s] procedural 28 shot was unobstructed.” See However, “[s]uccess is Hinkson v. Copenhaver, 2013 WL 5719520, at *4 10 1 (E.D. Cal. Oct. 21, 2013) (emphasis added). Furthermore, on June 27, 2 2016, the United States Supreme Court granted certiorari in Beckles v. 3 United States, 136 S. Ct. 2510 (2016), which presents the question 4 whether Johnson’s holding applies to the residual clause in the 5 federal career offender Sentencing Guidelines. 6 the Supreme Court granted certiorari in Dimaya v. Lynch, 803 F.3d 7 1110, 1112 (9th Cir. 2015), cert. granted, 137 S. Ct. 31 (Sept. 29, 8 2016), in which the Ninth Circuit struck down the residual clause of 9 18 U.S.C. section 16, a clause identical to that of Section 924(c)(3). Even more recently, 10 Hence, the ultimate fate of Petitioner’s Johnson claim remains 11 uncertain. 12 13 In these circumstances, Petitioner has failed to show he lacked 14 an “unobstructed procedural shot” at presenting his claims in a second 15 or successive section 2255 motion. 16 (6th Cir. 2016) (granting application to file second or successive 17 section 2255 motion where applicant claimed Johnson invalidated 18 Sentencing Guidelines’ residual clause; observing that, although there 19 are “respectable constitutional arguments” that Johnson did not apply, 20 “[n]ow is not the time to decide the question, and this is not the 21 venue for resolving it”). See In re Embry, 831 F.3d 377, 378 22 23 Accordingly, because the savings clause does not apply in the 24 present case, the Petition is a section 2255 motion over which this 25 Court lacks jurisdiction. 26 27 28 A court lacking jurisdiction of a civil action may transfer the action to a court in which the action could have been brought, 11 1 provided the transfer is “in the interest of justice.” 28 U.S.C. § 2 1631; see Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 3 2001). 4 normally dismissal of an action that could be brought elsewhere is 5 time consuming and justice-defeating.” 6 quotations omitted). 7 court would be an idle act. 8 (C.D. Cal. Dec. 3, 2014), and Scott v. Ives, 2009 WL 2051432 (E.D. 9 Cal. July 10, 2009), transfer to the sentencing court would not “Normally transfer will be in the interest of justice because Id. at 1074 (citations and Here, however, a transfer to the sentencing As in Crosby v. Ives, 2014 WL 6884017 10 benefit the Petitioner because the sentencing court would be unable to 11 entertain the matter, absent Circuit authorization. 12 2244, 2255(h). See 28 U.S.C. § 13 14 RECOMMENDATION 15 16 For all of the foregoing reasons, IT IS RECOMMENDED that the 17 Court issue an Order: (1) accepting and adopting this Report and 18 Recommendation; and (2) directing that Judgment be entered denying and 19 dismissing the Petition without prejudice. 20 21 DATED: December 6, 2016. 22 23 24 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 25 26 27 28 12 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. No notice of appeal pursuant to the 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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