Jorge Roca Suarez v. Jeff Wrigley

Filing 14

ORDER signed by District Judge Lawrence J. O'Neill on 1/13/2009, DENYING Petition for Writ of Habeas Corpus Without Prejudice; DIRECTING Clerk to Enter Judgment for Respondent; DECLINING Issuance of Certificate of Appealability. CASE CLOSED. (Jessen, A)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
A l t h o u g h petitions for habeas corpus relief are routinely referred to a Magistrate Judge, see L.R. 72-302, th e Court exercises its discretion to address the Petition pursuant to Local Rule 72-302(d).
1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

JORGE ROCA SUAREZ, Petitioner, vs. JEFF WRIGLEY, Respondent. /

CASE NO. CV F 07-00304 LJO WMW HC ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE; DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR RESPONDENT; DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY

On February 26, 2007, Jorge Roca Suarez ("Petitioner"), a pro se California federal prisoner, filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 by a Person in Federal Custody ("Petition") in this Court.1 Petitioner is presently incarcerated at the Taft Correctional Institution in Kern County, located within the jurisdictional boundaries of the United States District Court for the Eastern District of California ("Eastern District"). See 28 U.S.C. § 84(b). On April 25, 2008, Jeff Wrigley ("Respondent") filed an Answer to the Petition. On May 23, 2008, Petitioner filed a Traverse. Thus, this matter is ready for decision. PROCEDURAL HISTORY On February 5, 1993, a jury in the United States District Court for the Central District of

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

California ("Central District") convicted Petitioner of conspiracy to manufacture cocaine (Count One; 21 U.S.C. §§ 841(a)(1), 846), conspiracy to evade taxes (Count Two; 18 U.S.C. § 371), conspiracy to export currency (Count Three; 18 U.S.C. § 371), two counts of tax evasion (Counts Four & Five; 26 U.S.C. § 7201), and three counts of exportation of monetary instruments (Counts Eight through Ten; 31 U.S.C. §§ 5316(a)(1)(A), 5322(b)). (Answer Ex. A at 26; Answer Ex. B.) On September 27, 1993, the trial court sentenced Petitioner to 365 months on Count One, ten years on each of Counts Eight through Ten to run concurrent to one another and to the sentence on Count One, and five years on Counts Two through Five to run concurrent to one another but consecutive to the sentence on Count One, for a total prison term of thirty-five years and five months. (Answer Ex. B.) On December 12, 1994, the Ninth Circuit Court of Appeals affirmed Petitioner's conviction and sentence. See United States v. RocaSuarez, 43 F.3d 1480 (9th Cir. 1994). On April 8, 1997, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or amend his sentence in the Central District. (Answer Ex. C at 1.) On July 17, 2000, the Central District denied the § 2255 motion. (Id. at 2.) On January 31, 2002, the Ninth Circuit affirmed the denial of the § 2255 motion. See United States v. Roca-Suarez, 30 F. App'x 723 (9th Cir. 2002). On February 26, 2007, Petitioner filed the instant Petition. While the instant case was pending, on August 22, 2008, Petitioner filed a "Motion to Correct a Sentence Pursuant to Writ of Audita Querela 28 U.S.C. § 1651" in the Central District. See Roca-Suarez v. United States, No. 2:08-CV-05530-SVW (C.D. Cal. Dec. 2, 2008). On December 2, 2008, the Central District denied Petitioner's § 1651 motion. See id.2 DISCUSSION Petitioner's sole claim in the Petition is that the sentence imposed by the trial court on Count One is ten years in excess of the statutory maximum. (Pet. 3.) Petitioner argues that following the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the sentencing statute only permitted a twenty-year sentence on Count One, and thus Petitioner's sentence of thirty years is ten years over the

T h e Court takes judicial notice of Petitioner's recent Central District case. See United States v. Howard, 3 8 1 F.3d 873, 876 n.1 (9th Cir. 2004).

2

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

statutory maximum. (Pet. 3; Pet. Mem. 3.)3 Petitioner, sentenced before Apprendi, acknowledges that the Supreme Court has not held Apprendi retroactive to sentences imposed before the Apprendi decision but contends that an unpublished Ninth Circuit case, United States v. Peralta-Romero, 83 F. App'x 872 (9th Cir. 2003), so holds. (Pet. Mem. 2-4.) Petitioner also argues that this Court has jurisdiction over the instant § 2241 petition pursuant to the "savings clause" of 28 U.S.C. § 2255. (Id. 2, 4-6.) Jurisdiction over the Petition A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam). Motions contesting the legality of a federal conviction or sentence must be filed pursuant to 28 U.S.C. § 2255 in the sentencing court (here, the Central District, see Answer Ex. B). Id. at 864; see 28 U.S.C. § 2255(a). In contrast, challenges to the manner, location, or conditions of a sentence's execution must be brought pursuant to 28 U.S.C. § 2241 in the custodial court (here, the Eastern District, see Pet. 1). Hernandez, 204 F.3d at 864. Therefore, the Court must first decide whether jurisdiction is proper, i.e., whether the Petition should be considered to have been filed pursuant to § 2241 or § 2255, before it can reach the merits of Petitioner's claims. See id. at 865-66; see also Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citing Hernandez, 204 F.3d at 864), cert. denied, 127 S. Ct. 1896 (2007). Though filed as a § 2241 habeas petition, the instant Petition actually challenges the legality of Petitioner's sentence, specifically the imposition of ten years in excess of the statutory maximum for Petitioner's sentence. (See Pet. 3.) Accordingly, if any relief exists with respect to Petitioner's claim, it is under § 2255 and not through habeas relief pursuant to § 2241. See Hernandez, 204 F.3d at 864. Petitioner avers, however, that the provision in § 2255 referred to as the "savings clause" allows him to bring his claims under § 2241. (See Pet. Mem. 2, 4-6.) As addressed infra, if the Petition falls under the "savings clause" and therefore qualifies as a § 2241 petition, then only the Eastern District, designated as the custodial court, has jurisdiction over the Petition. Hernandez, 204 F.3d at 865. If, however, the savings clause does not apply, then the
P e t itio n e r appears to rely on Apprendi's holding that "[o]ther than the fact of a prior conviction, any fact th a t increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved b e y o n d a reasonable doubt," and thus the trial judge's substitution of judicial fact-finding over the jury's is therefore u n c o n s t i t u t i o n a l . Apprendi, 530 U.S. at 490; (Pet. Mem. 3-4.)
3

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Petition must be construed as a motion under § 2255, and jurisdiction lies only in the sentencing court, the Central District. Id. At the outset, the Court concludes that the savings clause is not applicable to the instant Petition. Savings Clause of 28 U.S.C. § 2255 A federal prisoner authorized to seek relief under § 2255 may not petition for habeas relief pursuant to § 2241 unless it appears that the § 2255 motion is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curiam). This provision of § 2255 is known as the "savings clause." Hernandez, 204 F.3d at 864 n.2. The burden of proving the inadequacy or ineffectiveness of a remedy under § 2255 rests on the habeas petitioner. Toma v. Turnage, 825 F.2d 1400, 1404 (9th Cir. 1987). The Ninth Circuit has recognized that the remedy under a § 2255 motion is "inadequate or ineffective" if a petitioner is actually innocent, but procedurally barred from filing a second or successive motion under § 2255. Ivy v. Pontesso, 328 F.3d 1057, 1060-61 (9th Cir. 2003). That is, relief pursuant to § 2241 is available when the petitioner's claim satisfies the following two-pronged test: "(1) [the petitioner is] factually innocent of the crime for which he has been convicted; and, (2) [the petitioner] has never had an `unobstructed procedural shot' at presenting this claim." Id. at 1060. "In determining whether a petitioner had an unobstructed procedural shot to pursue his claim, we ask whether petitioner's claim `did not become available' until after a federal court decision." Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (citing Stephens, 464 F.3d at 898) (emphasis added). "In other words, we consider: (1) whether the legal basis for petitioner's claim `did not arise until after he had exhausted his direct appeal and first § 2255 motion;' and (2) whether the law changed `in any way relevant' to petitioner's claim after that first § 2255 motion." Id. (citing Ivy, 328 F.3d at 1060-61). Here, Petitioner fails to show that a remedy under § 2255 is "inadequate or ineffective." Petitioner only challenges the legality of his sentence and not his conviction, and even concedes that he does not "argue that he is factually innocent." (Pet. Mem. 6.) In addition, Petitioner does not show he never had an "unobstructed procedural shot" at presenting his claim. Petitioner originally included his claim in the appeal of the denial of his § 2255 motion, but withdrew it. (See Pet. Mem. 1); Roca-Suarez, 30 F. App'x at 724 n.1. Furthermore, the Apprendi decision was decided on June 26, 2000, and 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Petitioner made no effort to amend his § 2255 motion in the Central District prior to the court's denial on July 17, 2000. (See Answer Ex. C at 2); Harrison, 519 F.3d at 960 ("[W]e ask whether petitioner's claim `did not become available' until after a federal court decision." (citation and internal quotation marks omitted) (emphasis added)). Moreover, to the extent that Petitioner argues that the preclusion of filing a second or successive § 2255 motion in the Central District renders a § 2255 remedy "inadequate or ineffective," that argument is without merit. (See Pet. Mem. 4); 28 U.S.C. §§ 2244, 2255(h). The ban on unauthorized second or successive motions does not make a § 2255 remedy inadequate or ineffective. See Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). Accordingly, and for the foregoing reasons, the savings clause of 28 U.S.C. § 2255 does not apply and the Petition is properly construed as a § 2255 motion. Section 2255 motions must be heard in the sentencing court. 28 U.S.C. § 2255(a); Hernandez, 204 F.3d at 864-65. Because this Court is only the custodial court and construes the Petition as a § 2255 motion, this Court lacks jurisdiction over the Petition. Hernandez, 204 F.3d at 864-85. Dismissal or Transfer of the Petition Title 28 U.S.C. § 1631 governs the transfer of civil actions to cure jurisdictional defects, and is the proper statute the Court must utilize for lack of jurisdiction over a habeas petition. See Hernandez, 204 F.3d at 865 n.6. Transfer is appropriate under § 1631 if three conditions are satisfied: (1) the transferring court lacks jurisdiction; (2) the transferee court could have exercised jurisdiction at the time the action was filed; and (3) the transfer is in the interest of justice. Cruz-Aguilera v. INS, 245 F.3d 1070, 1074 (9th Cir. 2001). The Court must decide whether the Petition should be dismissed or transferred to the sentencing court, the Central District. As discussed, the transferring court, the Eastern District, lacked jurisdiction at the time the Petition was filed on February 26, 2007. However, the transferee court, the Central District, would also not have had jurisdiction if the Petition was filed in that court on February 26, 2007. This is because a petitioner must obtain authorization from the appropriate court of appeals before filing a "second or successive" § 2255 motion in the district court, and lack of authorization deprives the district court of jurisdiction. See 28 U.S.C. §§ 2244(a), (b)(3), 2255(h); Burton v. Stewart, 549 U.S. 147, 152 (2007) 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(per curiam); Cooper v. Calderon, 274 F.3d 1270, 1274-75 (9th Cir. 2001).4 Here, Petitioner previously filed a § 2255 motion in the Central District on April 8, 1997, which was denied on the merits on July 17, 2000. (See Answer Ex. C at 1-2.) Because the instant Petition filed on February 26, 2007, is second or successive to the previous § 2255 motion adjudicated on the merits, Petitioner was required to move in the Ninth Circuit for an order authorizing the district court to consider his Petition. See 28 U.S.C. 2255(h); Burton, 549 U.S. at 153 (finding habeas petition second or successive when petitioner's first petition challenged his conviction and petitioner's second petition challenged his sentence pursuant to Apprendi); United States v. Lopez, 534 F.3d 1027, 1033 (9th Cir. 2008), reh'g granted on other grounds, No. 07-35389, 2008 WL 5000037 (Oct. 30, 2008); Harrison, 519 F.3d at 961-62. In light of Petitioner's failure to get appellate authorization, the Central District lacked jurisdiction at the time Petitioner filed the instant Petition in this Court. Burton, 549 U.S. at 152; Cooper, 274 F.3d at 1274-75. Finally, a transfer of the Petition would not be in the interest of justice. Cruz-Aguilera, 245 F.3d at 1074. "Normally transfer will be in the interest of justice because normally dismissal of an action that could be brought elsewhere is time consuming and justice-defeating." Id. (citation and internal quotation marks omitted). "When determining whether transfer is in the interest of justice, courts have considered whether the failure to transfer would prejudice the litigant, whether the litigant filed the original action in good faith, and other equitable factors." Id. Here, the Petition cannot be "brought elsewhere" because the Central District does not have jurisdiction. In addition, even assuming the Central District had jurisdiction to hear Petitioner's claim, his claim that Apprendi applies retroactively to his 1993 sentence is without merit. The Ninth Circuit has explicitly held that Apprendi is not retroactive. See, e.g., Cooper-Smith v. Palmateer, 397 F.3d 1236, 1245-46 (9th Cir. 2005). Petitioner cites an unpublished opinion, United States v.

Peralta-Romero, 83 F. App'x 872 (9th Cir. 2003), for the proposition that the Ninth Circuit has found Apprendi retroactive. (See Pet. Mem. 2-4.) However, Peralta-Romero is distinguishable because the petitioner's conviction in that case was not final prior to the Supreme Court's decision in Apprendi, and thus the Peralta-Romero court was not applying Apprendi retroactively. (See Appellant's Br., United
B e c a u s e Petitioner brings a disguised § 2255 motion instead of a legitimate § 2241 petition, the second or s u c c e s s i v e bar applies. See Harrison, 519 F.3d at 961-62.
4

6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

States v. Peralta-Romero, No. 02-16190, 2002 WL 32625736, at *4-*5, *16 n.4.)5 Instead, the court upheld the petitioner's resentencing because the district court's "inherent authority to sentence was broad and flexible" and the petitioner's Apprendi claim was not procedurally defaulted. Peralta-Romero, 83 F. App'x at 874. Because Petitioner's conviction and sentence were final prior to the Apprendi decision, Peralta-Romero is inapplicable and the bar to Apprendi's retroactivity disallows Petitioner relief. See Cooper-Smith, 397 F.3d at 1245-46. Accordingly, and for the foregoing reasons, the Petition is dismissed without prejudice for lack of jurisdiction. See 28 U.S.C. § 2255; Hernandez, 204 F.3d at 865. Certificate of Appealability "Where a petition purportedly brought under § 2241 is merely a `disguised' § 2255 petition, the petitioner cannot appeal from the denial of that petition without a [certificate of appealability]." Harrison, 519 F.3d at 958 (citing Porter v. Adams, 244 F.3d 1006, 1006-07 (9th Cir. 2001)). An applicant seeking to appeal a district court's dismissal of a motion under 28 U.S.C. § 2255 must first obtain a certificate of appealability ("COA") from a district judge or circuit judge. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A judge should either grant the COA or state reasons why it should not issue, and the COA request should be decided by a district court in the first instance. Fed. R. App. P. 22(b)(1); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The applicant for a COA must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000). A "substantial showing" is defined as a demonstration (1) that the issues are debatable among jurists of reason; (2) that a court could resolve the issues differently; or (3) that issues are adequate to deserve encouragement to proceed further. Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see Slack, 529 U.S. at 483-84 (stating that except for substituting the word "constitutional" for the word "federal," § 2253 codified the pre-AEDPA standard announced in Barefoot v. Estelle). When, as present here, the "district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows,
B e c a u s e the Peralta-Romero opinion did not enunciate the procedural history of the case, see P e r a lta - R o m e r o , 83 F. App'x at 873 n.1, the Court relies on the government's brief on appeal.
5

7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484. "Section 2253 mandates that both showings be made . . . and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments." Id. at 485. The Court has reviewed the record of this case and finds that reasonable jurists would not find the Court's procedural ruling debatable or wrong. Accordingly, the Court declines to issue a certificate of appealability. CONCLUSION AND ORDER For the reasons discussed above, the Court DENIES the Petition for Writ of Habeas Corpus without prejudice and DECLINES the issuance of a certificate of appealability. The Clerk of Court is ORDERED to enter Judgment for Respondent and to close Case No. CV F 07-00304 LJO WMW HC.

IT IS SO ORDERED. Dated: b9ed48 January 13, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

8