Rinaldi v. Rios
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 6/3/2011 recommending that 17 MOTION to DISMISS filed by H. A. Rios be GRANTED. Referred to Judge Oliver W. Wanger; Objections to F&R due by 7/8/2011. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL RINALDI,
1:10-cv-01181 OWW MJS (HC)
Petitioner,
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FINDING AND RECOMMENDATION
REGARDING MOTION TO DISMISS
PETITION FOR WRIT OF HABEAS
CORPUS
v.
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H.A. RIOS, Warden,
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Respondent.
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/
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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2241.
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I.
BACKGROUND
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Petitioner filed the instant petition on July 1, 2010. (Pet., ECF No. 1.) Petitioner is
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serving a sentence, imposed by the United States District Court for the Middle District of
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Pennsylvania, of 248 months for conspiracy to distribute cocaine, distribution of cocaine,
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possession of a firearm in relation to a crime, and possession of a firearm by a convicted
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felon. (Mot. to Dismiss, Ex. A, ECF No. 17-1.) Petitioner asserts he is actually innocent of
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the convictions and seeks relief via 28 U.S.C. § 2241. (Pet. at 6.) Petitioner claims that his
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innocence is a result of due process violations and ineffective assistance of counsel. (Id.
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at 7.)
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II.
LEGAL STANDARD
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A federal prisoner who wishes to challenge the validity or constitutionality of his
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conviction or sentence must do so by way of a motion under 28 U.S.C. § 2255. Tripati v.
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Henman, 843 F.2d 1160, 1162 (9th Cir.1988). In such cases, only the sentencing court
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has jurisdiction. Id. at 1163. A prisoner may not collaterally attack a federal conviction or
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sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
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Grady v. United States, 929 F.2d 468, 470 (9th Cir. 1991); Tripati, 843 F.2d at 1162. In
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contrast, a federal prisoner challenging the manner, location, or conditions of that
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sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. §
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2241. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).
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Petitioner is attacking the conviction and sentence, not the manner, location, or
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conditions of the sentence's execution. Because Petitioner is challenging his conviction
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and sentence, he must pursue his claims in the sentencing court via a motion under 28
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U.S.C. § 2255.
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The Ninth Circuit has recognized a narrow exception allowing a federal prisoner
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authorized to seek relief under § 2255 to seek relief under § 2241 if the remedy by motion
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under § 2255 is "inadequate or ineffective to test the validity of his detention." Alaimalo v.
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United States, 636 F.3d 1092, 2011 U.S. App. LEXIS 3799, *6 (9th Cir. February 28,
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2011), citing Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). "This is called the
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'savings clause' or 'escape hatch' of § 2255." Id. Furthermore, § 2255 petitions are rarely
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found to be inadequate or ineffective. Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s denial
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of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 F.2d at
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1162-63 (9th Cir.1988) (a petitioner's fears of bias or unequal treatment do not render a
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§ 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt
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v. Swope, 229 F.2d 582 (9th Cir.1956). The burden is on the petitioner to show that the
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remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir.
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1963).
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III.
ANALYSIS
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Petitioner has not shown section 2255 is inadequate or ineffective. "A petition
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meets the escape hatch criteria where a petitioner '(1) makes a claim of actual innocence,
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and (2) has not had an unobstructed procedural shot at presenting that claim.'" Alaimalo
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v. United States, 2011 U.S. App. LEXIS 3799 at *6 (citing Stephens v. Herrera, 464 F.3d
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895, 898 (9th Cir. 2006)). “In other words, it is not enough that the petitioner is presently
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barred from raising his claim of innocence by motion under § 2255. He must never have
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had the opportunity to raise it by motion.” Ivy v. Pontesso, 328 F.3d 1057, 1059-60 (9th Cir.
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2003).
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Here, as described by Respondent, Petitioner did file several post conviction
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petitions, including a Section 2255 petition, and several other motions. (See Mot. To
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Dismiss, Ex. A.) Petitioner raised claims nearly identical to those of the present petition in
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a Petition for Writ of Audita Querela in the middle district of Pennsylvania in 2009. (Id., Ex.
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B.) In denying the petition, the court noted the several post-conviction filings already
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attempted by Petitioner, including his habeas petition under section 2255. (Id.) The court
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also noted that the proper vehicle for such claims is a petition of habeas corpus under
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section 2255 but that leave of the Court of Appeals to file a second or successive petition
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was required. (Id.) Petitioner previously filed an application to file a second or successive
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motion for relief under § 2255, and it was denied by the Third Circuit Court of Appeals.
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(Id., Ex. C.)
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Petitioner's actual innocence arguments are based on assertions and declarations
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which state that he was not part of a conspiracy and that supportive evidence was not
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presented at trial due to ineffective assistance of counsel. A claim of actual innocence for
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purposes of the "escape hatch" of § 2255 is assessed by the test stated in Bousley v.
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United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998), which in turn
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requires that the petitioner demonstrate that in light of all the evidence, it is more likely than
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not that no reasonable juror would have convicted him. Stephens, 464 F.3d 895, 898.
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Petitioner has only presented factual allegations and a claim of ineffective assistance of
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counsel. He asserts that if his trial counsel had interviewed these witnesses, they would
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have testified to his innocence at trial. (Pet. at 8.) Petitioner was found guilty after a seven
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day jury trial. Even if the evidence proposed by Petitioner was favorable, Petitioner does
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not adequately explain why he was not able to present these claims by way of his § 2255
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habeas corpus petition. He asserts that the affidavit evidence became available eight years
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after his § 2255 petition. (Response, p. 6, ECF No. 18.) Even though Petitioner may have
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not obtained the affidavits until eight years after his § 2255 petition, he does not explain
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how the evidence is newly discovered or was otherwise not obtainable for such a period
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of time. Petitioner's primary claim based on ineffective assistance of counsel rests on
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established Supreme Court law. Petitioner makes no showing why such a claim could not
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have been presented, and the evidence contained in the affidavits obtained, at the time of
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filing the § 2255 petition. As described in the Government's Response to Motion for Relief
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from Judgment, Petitioner has previously presented affidavits of witnesses which allege
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that he was not part of the conspiracy. (Mot. to Dismiss, Ex. C.)
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Petitioner has not presented a sufficient showing that his remedy under § 2255 was
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inadequate or ineffective to test the validity of his detention. Accordingly, the Court
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recommends that the motion to dismiss be granted and the petition for habeas corpus
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under § 2241 be dismissed.
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IV.
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RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss be
GRANTED.
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This Findings and Recommendation is submitted to the assigned United States
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District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule
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304 of the Local Rules of Practice for the United States District Court, Eastern District of
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California. Within thirty (30) days after the date of service of this Findings and
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Recommendation, any party may file written objections with the Court and serve a copy on
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all parties. Such a document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendation.” Replies to the Objections shall be served and filed within
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fourteen (14) days after service of the Objections. The Finding and Recommendation will
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then be submitted to the District Court for review of the Magistrate Judge’s ruling pursuant
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to 28 U.S.C. § 636 (b)(1)(c). The parties are advised that failure to file objections within
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the specified time may waive the right to appeal the Order of the District Court. Martinez
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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
92b0h
June 3, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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