David Webb v. Cynthia Entzel

Filing 14

ORDER DISMISSING ACTION by Judge Stephen V. Wilson, re Petition for Writ of Habeas Corpus (2241), 1 . The present action is DISMISSED without prejudice. IT IS SO ORDERED. Case Terminated. Made JS-6. (mz)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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DAVID WEBB,
Petitioner,

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Case No. ED CV 17-1131 SVW(MRW)
ORDER DISMISSING ACTION

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CYNTHIA ENTZEL, Warden,
Respondent.

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The Court summarily dismisses Petitioner's habeas petition for lack of
jurisdiction.
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1.

Petitioner was formerly an inmate at the federal prison facility at

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Victorville, California. (Shortly after commencing this action, he was transferred

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to a federal prison in Tennessee.) He filed a habeas petition in this Court under

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2 U.S.C. § 2241 seeking review of his sentence resulting from an armed bank
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robbery conviction.

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In 1998, Petitioner was convicted ofthe bank robbery charge at trial

in the Eastern District of Arkansas. The district court imposed a life sentence on

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Petitioner under the career offender provision of 18 U.S.C. § 3559(c)(1). The court

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f
ound that Petitioner had previously been convicted of robbery, aggravated

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robbery, and escape. (Docket # 8 at 4.) The Eighth Circuit Court of Appeals

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affirmed the conviction and sentence. United States v. Webb, 168 F.3d 496(8th

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Cir. 1999).

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Since then, Petitioner pursued numerous forms ofpost-conviction

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relief in the Arkansas federal court. In its motion to dismiss this action, the

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government identified three post-appeal collateral attacks that Petitioner filed in

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the Eastern District of Arkansas between 2000 and the present. The first two were

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denied in the district court and on appeal to the Eighth Circuit. The third collateral

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attack —filed several weeks before Petitioner commenced this action in the Central

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District of California —was also denied. (Docket # 8 at 5-6.)

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In his current action in this district, Petitioner contends that he is

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serving an "illegal sentence." He argues that his prior convictions cannot serve as

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predicate offenses for a career offender sentence following the Supreme Court's

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decision in Descamps v. United States,

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, 133 S. Ct. 2276(2013).

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Docket # 1.) He seeks relief under the "savings clause" under 28 U.S.C. § 2255.
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Id.
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5.

The government moved to dismiss the action on numerous grounds.

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Its key claims are that Petitioner's Section 2241 action is actually an improper

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motion under Section 2255. The government contends that this Court does not

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have jurisdiction over Petitioner's claims. The government also briefly argues that

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Petitioner's action fails on the merits. (Docket # 8.)

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In his reply submission, Petitioner appears to add several legal

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theories to his claim for relief. These include references to the Supreme Court's

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decision in Johnson v. United States,

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U.S.
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, 135 S. Ct. 2551 (2015).

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If it "plainly appears from the face of the petition and any e~ibits

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annexed to it that the petitioner is not entitled to relief," the Court may summarily

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dismiss a habeas petition after filing. Local Rule 72-3.2(magistrate judge may

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submit proposed order for summary dismissal to district judge); see also Rule 4(b)

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ofRules Governing Section 2255 Cases in United States District Courts (petition

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may be summarily dismissed if petitioner plainly not entitled to relied.

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The Court concludes that it does not have jurisdiction over

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Petitioner's claims. Federal prisoners have two statutory paths by which they may

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seek a writ of habeas corpus. "As a general rule," federal inmates may collaterally

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attack their conviction only under 28 U.S.C. § 2255. Alaimalo v. United States,

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645 F.3d 1042, 1046(9th Cir. 2011). However, a federal prisoner may also seek a

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writ under 28 U.S.C. § 2241. That statute permits a prisoner to "challenge the

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manner, location, or conditions of a sentence's execution" by habeas review in the

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district in which the inmate is confined. Hernandez v. Campbell, 204 F.3d 861,

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864(9th Cir. 2000).

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The statutes overlap in the "exceptional case" in which a petition

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qualifies for the escape hatch of[Section] 2255, and can legitimately be brought
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as a [Section] 2241 petition." Harrison v. 011ison, 519 F.3d 952,958 (9th Cir.

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2008). The "escape hatch" provision under Section 2255(e) allows a federal

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prisoner to pursue relief under Section 2241 where it appears that a habeas petition

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in the sentencing court is "inadequate or ineffective to test the legality of his

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detention." Id. at 956. To apply the escape hatch, a district court must first answer

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the "threshold jurisdictional question" of"whether a petition is properly brought

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under § 2241 or is, instead, a disguised § 2255 motion, before it can proceed to the

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merits ofthe claim." Marrero v. Ives, 682 F.3d 1190, 1194(9th Cir. 2012).

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A prisoner may qualify for the escape hatch —and bring a

Section 2241 petition in the district in which the prisoner is incarcerated —when

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the petitioner "(1) makes a claim of actual innocence, and(2)has not had an

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unobstructed procedural shot at presenting that claim." Alaimalo,645 F.3d at 1047

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quotation omitted).
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However, a "purely legal claim that has nothing to do with factual

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innocence[]is not a cognizable claim of `actual innocence' for the purposes of

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qualifying to bring a § 2241 petition under the escape hatch." Marrero, 682 F.3d

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at 1194 (actual innocence "means factual innocence, not mere legal insufficiency")

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citation omitted).
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As for the "unobstructed procedural shot" component, a prisoner must

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show that:(1)"the legal basis for petitioner's claim [of actual innocence] did not

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arise until after he had exhausted his direct appeal and first § 2255 motion"; and

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§ 2255 motion." Harrison, 519 F.3d at 960. An intervening court decision "must

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effect a material change in the applicable law" to satisfy this test. Alaimalo,

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645 F.3d at 1047(quotation omitted).
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Petitioner's habeas claims here cannot get him through the escape

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hatch. His claims regarding his sentencing nearly 20 years ago do not take up

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whether he is factually innocent of either(a) his offense of conviction or(b)the

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prior convictions that led to his enhanced sentence. Instead, he advances "purely

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legal claims" regarding those convictions and his resulting sentence that do not

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establish a cognizable claim of"actual innocence" under § 2255(e). Marrero,682

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F.3d at 1194.

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Moreover, Petitioner cannot convincingly establish that he has been

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denied an unobstructed procedural shot at bringing a successive Section 2255

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motion in Arkansas. Alaimalo,645 F.3d at 1047. Petitioner already pursued

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three post-appeal motions —without success — in the trial court, including one that

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he filed nearly simultaneously with this action. Notably, that recent action did not

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pursue relief under Descamps(even though that case had been decided

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approximately four years ago). (Docket # 8-14.)

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Further, he cannot demonstrate that the Descamps decision has ~a

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impact on his case. The Ninth Circuit has rejected the argument that the 2013

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decision in Descamps served as a retroactive change offederal sentencing law.

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United States v. Myers, 691 F. App'x 411 (9th Cir. 2017). Instead, Descamps

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simply clarified existing Supreme Court precedent. Ezell v. United States, 778

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F.3d 762(9th Cir. 2015). Therefore, Descamps did not cause a material change in

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the law relevant to Petitioner's claims. Harrison, 519 F.3d at 960.
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Finally, the government convincingly argues that Descamps and

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Johnson —both of which involved close analyses of specific components ofthe

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Armed Career Criminal Act[18 U.S.C. § 924] — do not apply to sentencing under

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the career offender provisions of Section 3559. Gray v. United States, 622 F.

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App'x 788, 792(11th Cir. 2015)(escape clause provision of Section 3559 renders

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Descamps inapplicable to career offender sentencing); Walker v. United States,

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2017 WL 3600943 at *14(S.D. Fl. 2017)("§ 924(e) and § 3559(c)(3)(A) are

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different, in pertinent part, because § 3559(c)'s language requires a sentencing

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court to look to the underlying facts ofthe offense in order to determine whether it

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was anon-qualifying offense")(quoting Gray).

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Petitioner cannot squeeze through the "escape hatch" in Section 2241

to have this Court hear his sentencing challenge. He does not advance a true

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actual innocence" claim, and he identifies no material change in law applicable to
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his case. The Court summarily concludes that Petitioner's action is a disguised

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Section 2255 challenge over which this Court does not have jurisdiction.

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Therefore, the present action is DISMISSED without prejudice.

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IT IS SO ORDERED.

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Dated:

11/15/2017

HON. STE
UNITED S

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Presented by:

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HON. MICHAEL R. WIENER
L7IVITED STATES MAGISTRATE JUDGE

N V. WILSON
TES DISTRICT JUDGE