Bowman v. Rios
Filing
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ORDER DENYING 9 Motion for relief from the Judgment of Dismissal; ORDER DECLINES to **ISSUE A CERTIFICATE OF APPEALABILITY, signed by Magistrate Judge Sheila K. Oberto on 7/29/2011. (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WESLEY WILLIAM BOWMAN,
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Petitioner,
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v.
H. A. RIOS, Warden,
Respondent.
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1:11-cv—00440-SKO-HC
ORDER DENYING PETITIONER’S MOTION
FOR RELIEF FROM THE JUDGMENT
(DOC. 9)
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
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Petitioner is a federal prisoner who proceeded pro se in a
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habeas corpus action pursuant to 28 U.S.C. § 2241.
Pursuant to
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28 U.S.C. § 636(c)(1), Petitioner consented to the jurisdiction
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of the United States Magistrate Judge to conduct all further
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proceedings in the case, including the entry of final judgment,
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by manifesting consent in a signed writing filed by Petitioner on
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March 23, 2011 (doc. 5).
On April 8, 2011, the Court dismissed
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the petition for lack of jurisdiction, declined to issue a
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certificate of appealability, and entered judgment pursuant to
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the order of dismissal.
Pending before the Court is Petitioner’s motion for relief
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from the judgment pursuant to Fed. R. Civ. P. 60(b)(4), which was
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filed on May 13, 2011.
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void due to plain error as he was actually or factually innocent
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of the legal requirements for enhancement of his sentence because
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one prior conviction of tampering with an automobile was not a
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crime of violence as found by the sentencing court.
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I.
Petitioner contends that the judgment was
Motion for Relief from the Judgment of Dismissal
A.
Legal Standards
Fed. R. Civ. P. 60 applies to habeas proceedings only to the
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extent that application is not inconsistent with the applicable
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federal statutes and rules.
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529 (2005) (challenge to dismissal of a § 2254 petition for
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untimeliness).
Gonzalez v. Crosby, 545 U.S. 524,
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Here, Petitioner challenges the Court’s determination that
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dismissal of the §2241 petition was required because Petitioner
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had not shown that his remedy pursuant to 28 U.S.C. § 2255 was
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inadequate or ineffective.
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is appropriately applied in Petitioner’s case.
The Court will assume that Rule 60(b)
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Federal Rule of Civil Procedure 60(b) governs the
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reconsideration of final orders of the district court.
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permits a district court to relieve a party from a final order or
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judgment on various grounds, including 1) mistake, inadvertence,
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surprise, or excusable neglect; 2) newly discovered evidence;
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3) fraud or misconduct by an opposing party; 4) a void judgment;
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5) a satisfied judgment; or 6) any other reason that justifies
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relief from the judgment.
Fed. R. Civ. P. 60(b).
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The rule
The motion for
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reconsideration must be made within a reasonable time, and with
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respect to the first three grounds, no more than a year after the
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entry of the judgment, order, or proceeding.
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60(c).
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the trial court.
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(D.C.Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.
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1983) (en banc).
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of a strongly convincing nature to induce the Court to reverse
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its prior decision.
Fed. R. Civ. P.
Motions to reconsider are committed to the discretion of
Combs v. Nick Garin Trucking, 825 F.2d 437, 441
To succeed, a party must set forth facts or law
See, e.g., Kern-Tulare Water Dist. v. City
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of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff'd in
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part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir.
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1987), cert. denied, 486 U.S. 1015 (1988).
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stated that "[c]lause 60(b)(6) is residual and ‘must be read as
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being exclusive of the preceding clauses.'"
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Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir.
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1986) (quoting Corex Corp. v. United States, 638 F.2d 119 (9th
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Cir. 1981)).
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‘extraordinary circumstances.'" Id.
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The Ninth Circuit has
LaFarge Conseils et
Accordingly, "the clause is reserved for
Further, when filing a motion for reconsideration, Local
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Rule 230(j) requires a party to show the "what new or different
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facts or circumstances are claimed to exist which did not exist
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or were not shown upon such prior motion, or what other grounds
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exist for the motion," as well as “why the facts or circumstances
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were not shown at the time of the prior motion.”
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B.
Facts
Here, Petitioner alleged that he was an inmate of the United
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States Penitentiary at Atwater, California (USPA) who challenged
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his sentence of one hundred (100) months imposed in case number
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06-00037-01-CR-W-HFS on September 5, 2006, by the United States
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District Court for the Western District of Missouri upon
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Petitioner’s conviction of being a felon in possession of a
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firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924 (a)(2).
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(Pet. 6-7.)
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enhanced his sentence for having two prior convictions for a
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crime of violence or a controlled substance offense, when in fact
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Petitioner had only one such predicate conviction.
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Petitioner alleged that he was “factually innocent” of the legal
Petitioner alleged that the sentencing court
(Pet. 6.)
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requirements for the enhanced sentence because one prior
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conviction of tampering with an automobile was not a crime of
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violence as found by the sentencing court.
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that his sentence be vacated and that his case be remanded for
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resentencing based on only one prior conviction for a controlled
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substance offense.
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Petitioner prayed
Petitioner admitted that prison officials could not grant
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the relief he requested.
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had not filed previous petitions under 28 U.S.C. §§ 2241 or 2255.
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(Pet. 4.)
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C.
(Pet. 3.)
He further indicated that he
Analysis
A federal prisoner who wishes to challenge his conviction or
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sentence on the ground it was imposed in violation of the
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Constitution or laws of the United States or was otherwise
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subject to collateral attack must do so by way of a motion to
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vacate, set aside, or correct the sentence under 28 U.S.C.
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§ 2255.
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(9th Cir. 2006); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.
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1988).
28 U.S.C. § 2255; Stephens v. Herrera, 464 F.3d 895, 897
In such cases, the motion must be filed in the district
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where the defendant was sentenced because only the sentencing
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court has jurisdiction.
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(9th Cir. 2000); Tripati, 843 F.2d at 1163.
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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
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pursuant to 28 U.S.C. § 2241.
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897 (9th Cir. 2006);
Hernandez v. Campbell, 204 F.3d 861, 864
Generally, a
Stephens v. Herrera, 464 F.3d 895,
Tripati, 843 F.2d at 1162.
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In contrast, a federal prisoner challenging the manner,
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location, or conditions of that sentence's execution must bring a
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petition for writ of habeas corpus under 28 U.S.C. § 2241.
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v. United States, 610 F.2d 672, 677 (9th Cir. 1990).
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Brown
A federal prisoner authorized to seek relief under § 2255
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may seek relief under § 2241 only if he can show that the remedy
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available under § 2255 is "inadequate or ineffective to test the
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legality of his detention."
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297, 299 (9th Cir. 1997) (quoting § 2255).
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little guidance on when § 2255 is an inadequate or ineffective
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remedy, the Ninth Circuit has recognized that the exception is
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narrow.
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(dismissal of a successive motion pursuant to § 2255 did not
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render such motion procedure an ineffective or inadequate remedy
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so as to authorize a federal prisoner to seek habeas relief);
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Aronson v. May, 85 S.Ct. 3, 5 (1964) (denial of a prior § 2255
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motion is insufficient to render § 2255 inadequate); Tripati, 843
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F.2d at 1162-63 (9th Cir. 1988) (a petitioner's fears of bias or
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unequal treatment do not render a § 2255 petition inadequate);
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see, United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir.
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2001) (procedural requirements of § 2255 may not be circumvented
United States v. Pirro, 104 F.3d
Although there is
Id; Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999)
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by filing a petition for writ of audita querela pursuant to the
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All Writs Act, 28 U.S.C. § 1651).
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petitioner to show that the remedy is inadequate or ineffective.
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Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).
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petitioner proceeding pursuant to § 2241 fails to meet the burden
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of demonstrating that the § 2255 remedy is inadequate or
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ineffective, then the § 2241 petition will be dismissed for lack
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of jurisdiction.
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2003).
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The burden is on the
If a
Ivy v. Pontesso, 328 F.3d 1057, 1061 (9th Cir.
In this case, Petitioner challenged his underlying sentence
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because of the sentencing court’s use of prior convictions in
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determining the length of the sentence.
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alleging errors in his sentence, and not errors in the
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administration of his sentence, the Court correctly concluded
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that Petitioner was not entitled to relief under § 2241.
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addition, Petitioner made no express claim that § 2255 was
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inadequate or ineffective.
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§ 2255 remained available to Petitioner.
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Because Petitioner was
In
Therefore, it appeared that
Petitioner urges that he was factually innocent of the legal
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requirements for the enhanced sentence because one prior
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conviction of tampering with an automobile was not a crime of
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violence as found by the sentencing court.
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circuit cases which have granted relief based on a showing of
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factual innocence of sentencing enhancements, as distinct from a
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showing of factual innocence of the offense or offenses for which
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the petitioner was sentenced.
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§ 2255 was otherwise unavailable to Petitioner, he did not
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establish actual innocence sufficient to permit him to proceed
He relies on out of
However, even assuming that
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pursuant to § 2241.
Although authority in this circuit is limited, it is
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recognized that the § 2255 remedy is inadequate and ineffective.
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Thus a petition pursuant to § 2241 is available, when the
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petitioner 1) claims to be factually innocent of the crime for
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which he has been convicted, and 2) has never had an
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“unobstructed procedural shot” at presenting the claim.
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v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006).
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a claim of actual innocence for purposes of the “escape hatch” of
Stephens
In this circuit,
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§ 2255 is assessed by the test stated in Bousley v. United
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States, 523 U.S. 614, 623 (1998), which in turn requires that the
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petitioner demonstrate that in light of all the evidence, it is
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more likely than not that no reasonable juror would have
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convicted him.
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Stephens, 464 F.3d 895, 898.
Here, Petitioner does not allege or demonstrate that in
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light of all the evidence, it is more likely than not that no
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reasonable juror would have convicted him.
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alleges only that he was factually innocent with respect to
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findings concerning prior convictions considered for sentencing.
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Thus, Petitioner has not established actual innocence as defined
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by Bousley v. United States, and thus he has not met the standard
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required in this circuit.
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Lorentsen v. Hood, 223 F.3d at 954; see, Rith v. Rios, No. 1:10-
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CV-01035 GSA HC, 2010 WL 2546052, *3-*4 (E.D.Cal. 2010).
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Instead, Petitioner
Stephens v. Herrera, 464 F.3d at 898;
The cases from outside this circuit on which Petitioner
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relies are not determinative.
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courts of equal stature; one circuit’s decisions are not binding
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on other circuits.
All federal circuit courts are
However, circuit authority generally binds
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all courts within a particular circuit, including the court of
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appeals itself, until it is overruled by the court itself sitting
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en banc, or by the Supreme Court.
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1155, 1171 (9th Cir. 2001).
Hart v. Massanari, 266 F.3d
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Because the dismissal of the petition was effected in
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accordance with the precedent of this circuit, the judgment of
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dismissal was not void.
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judgment will be denied.
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II.
Petitioner’s motion for relief from the
Certificate of Appealability
Unless a circuit justice or judge issues a certificate of
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appealability, an appeal may not be taken to the Court of Appeals
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from the final order in a proceeding under section 2255.
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U.S.C. § 2253(c)(1)(B); Hohn v. United States, 524 U.S. 236, 239-
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40 (1998).
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pursuant to 28 U.S.C. § 2241, but which is really a successive
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application under § 2255, requires a certificate of
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appealability.
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2001).
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Appeal from a proceeding that is nominally undertaken
Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir.
It appears from the face of Petitioner’s § 2241 petition
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that Petitioner is raising claims attacking only the legality of
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his sentence, and not the execution of his sentence.
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A certificate of appealability may issue only if the
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applicant makes a substantial showing of the denial of a
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constitutional right.
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petitioner must show that reasonable jurists could debate whether
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the petition should have been resolved in a different manner or
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that the issues presented were adequate to deserve encouragement
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to proceed further.
§ 2253(c)(2).
Under this standard, a
Miller-El v. Cockrell, 537 U.S. at 336
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(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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certificate should issue if the Petitioner shows that jurists of
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reason would find it debatable whether the petition states a
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valid claim of the denial of a constitutional right and that
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jurists of reason would find it debatable whether the district
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court was correct in any procedural ruling.
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529 U.S. 473, 483-84 (2000).
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A
Slack v. McDaniel,
In determining this issue, a court conducts an overview of
the claims in the habeas petition, generally assesses their
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merits, and determines whether the resolution was debatable among
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jurists of reason or wrong.
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applicant to show more than an absence of frivolity or the
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existence of mere good faith; however, it is not necessary for an
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applicant to show that the appeal will succeed.
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Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
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A district court must issue or deny a certificate of
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appealability when it enters a final order adverse to the
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applicant.
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Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could
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debate whether the motion should have been resolved in a
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different manner.
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of the denial of a constitutional right.
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will decline to issue a certificate of appealability.
Petitioner has not made a substantial showing
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III.
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Accordingly, it is ORDERED that:
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1)
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DENIED; and
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2)
Accordingly, the Court
Disposition
The motion for relief from the judgment of dismissal is
The Court DECLINES to issue a certificate of
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appealability.
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IT IS SO ORDERED.
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Dated:
ie14hj
July 29, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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