Montes v. Benov
Filing
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FINDINGS and RECOMMENDATIONS Regarding Petition for Writ of Habeas Corpus, signed by Magistrate Judge Gary S. Austin on 6/22/11: Recommending that the Petition for Writ of Habeas Corpus 1 be DISMISSED; Objections to Findings and Recommendations due thirty (30) days after date of service of F&Rs. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GUSTAVO SANCHEZ MONTES,
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1:11-CV-00963 LJO GSA HC
Petitioner,
FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS
v.
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MICHAEL L. BENOV, 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 corpus
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pursuant to 28 U.S.C. § 2241.
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BACKGROUND1
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Petitioner filed the instant habeas petition in this Court on June 13, 2011. He is currently
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incarcerated at the Taft Correctional Institution in Taft, California. He challenges an unstated
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sentence from an unidentified United States District Court. He claims a ten-year sentence
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enhancement was wrongfully imposed by the sentencing court pursuant to the Supreme Court
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decision in Carachuri-Rosendo v. Holder, ___ U.S. ___, 130 S.Ct. 2577 (2010).
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Petitioner states he has already appealed his conviction and filed a motion to vacate his
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sentence pursuant to 28 U.S.C. § 2255.
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DISCUSSION
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A federal prisoner who wishes to challenge the validity or constitutionality of his federal
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This information was derived from the petition for writ of habeas corpus.
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conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence
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under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also
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Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007);
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Thompson v. Smith, 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd
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1997); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the
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sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. A prisoner may not collaterally
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attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant
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to 28 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d
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at 1162; see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980).
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In contrast, a prisoner challenging the manner, location, or conditions of that sentence's
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execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district
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where the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d
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861, 864-65 (9th Cir.2000) (per curiam); Brown v. United States, 610 F.2d 672, 677 (9th Cir.
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1990); Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37
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F.3d 175, 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir.
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1991); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991);Barden v. Keohane, 921 F.2d
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476, 478-79 (3rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987).
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“The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a
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federal prisoner may test the legality of his detention, and that restrictions on the availability of a
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§ 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” Stephens, 464
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F.3d at 897 (citations omitted).
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As Petitioner acknowledges, an exception exists by which a federal prisoner may seek
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relief under § 2241 if he can demonstrate the remedy available under § 2255 to be "inadequate or
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ineffective to test the validity of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th
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Cir.1997) (quoting § 2255); see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has
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recognized that it is a very narrow exception. Ivy v. Pontesso, 328 F.3d 1057, 59 (9th Cir.) (as
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amended), cert. denied, 540 U.S. 1051 (2003). The remedy under § 2255 usually will not be
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deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or because a
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remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964) (a
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court’s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843
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F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition
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inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229 F.2d
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582 (9th Cir.1956).
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There is little guidance on what constitutes “inadequate and ineffective” in relation to the
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savings clause. The Ninth Circuit has acknowledged that “[other] circuits, however, have held
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that Section 2255 provides an ‘inadequate and ineffective’ remedy (and thus that the petitioner
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may proceed under Section 2241) when the petitioner claims to be: (1) factually innocent of the
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crime for which he has been convicted; and, (2) has never had an ‘unobstructed procedural shot’
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at presenting this claim .” Ivy, 328 F.3d at 1059-60, citing Lorentsen v. Hood, 223 F.3d 950, 954
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(9th Cir.2000)); see also Stephens, 464 F.3d at 898. The burden is on the petitioner to show that
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the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th
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Cir.1963).
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In this case, Petitioner is challenging the validity and constitutionality of his federal
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sentence imposed by a federal court, rather than an error in the administration of his sentence.
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Therefore, the appropriate procedure would be to file a motion pursuant to § 2255 in the
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sentencing court, not a habeas petition pursuant to § 2241 in this Court.
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Petitioner argues, however, that § 2255 is inadequate and ineffective, because he has
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already filed a § 2255 motion, and that motion has been denied. Under the AEDPA, a prisoner
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may not bring a second or successive Section 2255 motion in district court unless “a panel of the
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appropriate court of appeals” certifies that the motion contains: (1) newly discovered evidence
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that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by
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clear and convincing evidence that no reasonable factfinder would have found the movant guilty
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of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral
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review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255; see Harrison v.
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Ollison, 519 F.3d 952, 955 (9th Cir.2008). Petitioner fails to meet either of these requirements.
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First, newly discovered evidence is not at issue in this case. Second, Petitioner does not cite to
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any cases, and the Court has found none, finding that the United States Supreme Court decision
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in Carachuri-Rosendo v. Holder is a “new rule” of constitutional law that is retroactively
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applicable. Accordingly, it appears that Petitioner does not qualify to file a successive Section
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2255 motion.
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Nevertheless, Petitioner's inability to meet the statutory requirements for filing a
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successive Section 2255 motion does not automatically render the remedy under Section 2255
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inadequate or ineffective. See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (concluding
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that a Section 2255 movant may not avoid the limitations imposed on successive petitions by
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styling his petition as one pursuant to Section 2241 rather than Section 2255, and that the
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AEDPA required dismissal of petitioner's successive Section 2255 motion because his claim was
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based neither on a new rule of constitutional law made retroactive by the Supreme Court nor on
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new evidence). To the extent Petitioner may argue that his only remedy is to pursue his claim via
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a habeas petition pursuant to Section 2241 because a panel of the court of appeals would refuse
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to certify a second or successive motion under Section 2255, Petitioner's argument fails. Section
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2241 “is not available under the inadequate-or-ineffective-remedy escape hatch of [Section] 2255
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merely because the court of appeals refuses to certify a second or successive motion under the
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gatekeeping provisions of [Section] 2255.” Lorentsen, 223 F.3d at 953. Further, as previously
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stated, the remedy under Section 2255 usually will not be deemed inadequate or ineffective
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merely because a previous Section 2255 motion was denied, or because a remedy under that
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section is procedurally barred. Id. at 953 (stating that the general rule in the Ninth Circuit is that
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“the ban on unauthorized second or successive petitions does not per se make § 2255 ‘inadequate
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or ineffective’ ”); see also United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir.2001)
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(procedural limits on filing second or successive Section 2255 motion may not be circumvented
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by invoking the All Writs Act, 28 U.S.C. § 1651); Moore, 185 F.3d at 1055 (rejecting petitioner's
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argument that Section 2255 remedy was ineffective because he was denied permission to file a
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successive Section 2255 motion, and stating that dismissal of a subsequent Section 2255 motion
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does not render federal habeas relief an ineffective or inadequate remedy); Tripati, 843 F.2d at
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1162-63.
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Moreover, Petitioner has failed to demonstrate that his claims qualify under the savings
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clause of Section 2255 because Petitioner's claims are not proper claims of “actual innocence.” In
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the Ninth Circuit, a claim of actual innocence for purposes of the Section 2255 savings clause is
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tested by the standard articulated by the United States Supreme Court in Bousley v. United
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States, 523 U.S. 614 (1998). Stephens, 464 U.S. at 898. In Bousley, the Supreme Court explained
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that, “[t]o establish actual innocence, petitioner must demonstrate that, in light of all the
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evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley,
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523 U.S. at 623 (internal quotation marks omitted). Petitioner bears the burden of proof on this
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issue by a preponderance of the evidence, and he must show not just that the evidence against
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him was weak, but that it was so weak that “no reasonable juror” would have convicted him.
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Lorentsen, 223 F.3d at 954.
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In this case, Petitioner does not assert that he is factually innocent of the crime for which
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he was convicted. Rather, he claims that, for sentencing purposes, he does not have the requisite
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qualifying prior conviction and, thus, he has been wrongfully sentenced with a ten-year
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enhancement. Under the savings clause, however, Petitioner must demonstrate that he is
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factually innocent of the crime for which he has been convicted, not the sentence imposed. See
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Ivy, 328 F.3d at 1060; Lorentsen, 223 F.3d at 954 (to establish jurisdiction under Section 2241,
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petitioner must allege that he is “‘actually innocent’ of the crime of conviction”); Edwards v.
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Daniels, 2006 U.S. Dist. LEXIS 94750, at *7, 2006 WL 3877525 (D.Or.2006) (“Petitioner's
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assertion that he is actually innocent of a portion of his sentence does not qualify him for the
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‘escape hatch’ of § 2255 because he must allege that he is ‘legally innocent of the crime for
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which he has been convicted,’ not the sentence imposed.”), adopted by Edwards v. Daniels, 2007
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U.S. Dist. LEXIS 12356, 2007 WL 608115 (D.Or.2007). Therefore, the instant § 2241 petition
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does not fit within the exception to the general bar against using Section 2241 to collaterally
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attack a conviction or sentence imposed by a federal court. See Lorentsen, 223 F.3d at 954
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(declining to decide whether federal prisoners who are actually innocent may resort to Section
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2241 when relief is not available under Section 2255 because the petitioner had not shown actual
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innocence); see also Stephens, 464 F.3d at 898-99 (concluding that, although petitioner satisfied
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the requirement of not having had an “unobstructed procedural shot” at presenting his
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instructional error claim under Richardson v. United States, 526 U.S. 813, 119 (1999) because
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the claim did not become available until Richardson was decided eight years after his first
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Section 2255 motion had been denied and the claim did not satisfy the requirements for a second
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or successive Section 2255 motion, petitioner could not satisfy the actual innocence requirement
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as articulated in Bousley and, thus, failed to properly invoke the escape hatch exception of
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Section 2255); Harrison, 519 F.3d at 959 (“[A] motion meets the escape hatch criteria of § 2255
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‘when a petitioner (1) makes a claim of actual innocence, and (2) has not had an unobstructed
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procedural shot at presenting that claim.’”).
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Accordingly, the Court concludes that Petitioner has not demonstrated that Section 2255
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constitutes an “inadequate or ineffective” remedy for raising his claims. Accordingly, Section
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2241 is not the proper statute for raising Petitioner's claims, and the petition should be dismissed
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for lack of jurisdiction.
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RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas
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corpus be DISMISSED as the petition alleges grounds not cognizable in a petition filed pursuant
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to 28 U.S.C. § 2241.
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This Findings and Recommendation is submitted to the United States District Court
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Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304
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of the Local Rules of Practice for the United States District Court, Eastern District of California.
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Within thirty (30) days after date of service of this Findings and Recommendation, Petitioner
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may file written objections with the Court. Such a document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendation.” Failure to file objections within the
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specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst,
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951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
June 22, 2011
/s/ Gary S. Austin
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UNITED STATES MAGISTRATE JUDGE
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