Phipps v. Rios
Filing
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FINDINGS and RECOMMENDATIONS Recommending that the 1 Petition for Writ of Habeas Corpus be Dismissed and the Clerk of Court be Directed to Enter Judgment signed by Magistrate Judge Michael J. Seng on 11/21/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/27/2011. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL PHIPPS,
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Petitioner,
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v.
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H. A. RIOS, JR.,
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Respondent.
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________________________________)
1:11-cv-01741 LJO MJS HC
FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS
(Doc. 1)
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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. Petitioner filed the instant petition for writ of habeas
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corpus on October 19, 2011.
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Petitioner was convicted on December 18, 1995, in the United States District Court for
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the Southern District of Ohio for armed bank robbery, armed postal robbery, conspiracy and
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other charges. He is currently serving a sentence of 100 years and 10 months. Petitioner
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present four claims for relief, claiming that (1) aiding and abetting elements not apply equally
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to all the charged counts, (2) plain error occurred during trial and jury instructions, (3)
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Petitioner is actually innocent of the use of a firearm charge, and (4) that there was insufficient
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evidence to convict Petitioner as a principal or an aider and abettor. (Pet., ECF No. 1.)
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I.
SCREENING THE PETITION
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Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism
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and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh
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v. Murphy, 521 U.S. 320, 327, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997); Jeffries v. Wood,
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114 F.3d 1484, 1499 (9th Cir. 1997).
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The Rules Governing Section 2254 Cases in the United States District Courts (Habeas
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Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241.
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Habeas Rule 1(b). Habeas Rule 4 requires the Court to make a preliminary review of each
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petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly
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appears from the petition and any attached exhibits that the petitioner is not entitled to relief
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in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990);
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see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that
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a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting
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each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the
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petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory
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Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge
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v. Allison, 431 U.S. 63, 75 n. 7, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977)). Allegations in a
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petition that are vague, conclusory, or palpably incredible are subject to summary dismissal.
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Hendricks v. Vasquez, 908 F.2d at 491.
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Further, the Court may dismiss a petition for writ of habeas corpus either on its own
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motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an
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answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976
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Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
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II.
JURISDICTION
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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 to vacate, set aside, or correct the
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sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988). In
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such cases, only the sentencing court has jurisdiction. Id. at 1163. A prisoner may not
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collaterally attack a federal conviction or sentence by way of a petition for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir.
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2000) (“Generally, motions to contest the legality of a sentence must be filed under § 2255 in
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the sentencing court, while petitions that challenge the manner, location, or conditions of a
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sentence's execution must be brought pursuant to § 2241 in the custodial court.”); Tripati, 843
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F.2d at 1162.
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In 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. § 2241.
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Hernandez, 204 F.3d at 865.
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Here, Petitioner is challenging the validity and constitutionality of his conviction.
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Therefore, the appropriate procedure would be to file a motion pursuant to § 2255 and not a
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habeas petition pursuant to § 2241.
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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, 1096 (9th Cir. 2011), citing Harrison v. Ollison, 519 F.3d 952,
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956 (9th Cir. 2008). "This is called the 'savings clause' or 'escape hatch' of § 2255." Id.
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Furthermore, § 2255 petitions are rarely found to be inadequate or ineffective. Aronson v. May,
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85 S.Ct. 3, 5, 13 L. Ed. 2d 6 (1964) (a court's denial of a prior § 2255 motion is insufficient to
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render § 2255 inadequate.); Tripati, 843 F.2d at 1162-63 (9th Cir.1988) (a petitioner's fears
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of bias or unequal treatment do not render a § 2255 petition inadequate); Williams v. Heritage,
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250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 (9th Cir.1956). The burden
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is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United
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States, 315 F.2d 76, 83 (9th Cir. 1963).
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Petitioner asserts that following his conviction, he filed a notice of appeal. Petitioner
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states that he claimed in his appeal that the evidence was insufficient to support the
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conviction, he challenged the jury instructions, he claimed a conflict of interest by counsel, and
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he challenged his conviction of aiding and abetting. A review of the docket in the underlying
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criminal case, United States v. Phipps, Case No. 2:95-cr-00066-GCS, reveals the disposition
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of the appeal and subsequent filings.1 The appeal was denied on September 11, 1997. On
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February 16, 1999, he filed a motion pursuant to 28 U.S.C. § 2255 to vacate judgment. On
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October 19, 2000, the motion was denied. On October 31, 2001, the Court of Appeals denied
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Petitioner’s motion to file a second § 2255 petition.
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Petitioner has not claimed that he did lacked an unobstructed opportunity to present
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his claims in his § 2255 motion and he must now raise it by way of a § 2241 petition. Instead,
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he states that he may be procedurally barred to proceed by way of a § 2255 petition.
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Petitioner's argument is without merit. First, he concedes he did in fact raise the same
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arguments in his criminal appeal. Further, Petitioner has filed a § 2255 motion, and has
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requested to file a second § 2255 motion with the sentencing court. He has had numerous
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opportunities to present the claims he now raises, and has in fact done so. Therefore,
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Petitioner does not qualify under the savings clause.
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In addition, Petitioner has failed to demonstrate that his claims qualify under the savings
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clause of section 2255 because his claims are not proper claims of "actual innocence." In
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Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998), the
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Supreme Court explained that, "[t]o establish actual innocence, petitioner must demonstrate
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that, in light of all the evidence, it is more likely than not that no reasonable juror would have
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convicted him." Id. at 623 (internal quotation marks omitted). See also Ivy v. Pontesso, 328
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F.3d 1057, 1060 (9th Cir. 2003). Petitioner bears the burden of proof on this issue by a
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preponderance of the evidence, and he must show not just that the evidence against him was
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weak, but that it was so weak that "no reasonable juror" would have convicted him. Lorentsen
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v. Hood, 223 F.3d 950, 954 (9th Cir. 2000). Petitioner fails to demonstrate by a preponderance
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of evidence that he is factually innocent of use of a firearm. Petitioner states how other co-
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defendants used firearms, but does not describe why he is innocent of the charge. Further,
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Pursuant to Rule 201 of the Federal Rules of Evidence, this Court m ay take judicial notice of filings in
another case. See Biggs v. Terhune, 334 F.3d 910, 916 n.3 (9th Cir. 2003) (m aterials from a proceeding in
another tribunal are appropriate for judicial notice); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)
(noting that a court m ay take judicial notice of "m atters of public record"); United States v. Cam p, 723 F.2d 741,
744 n.1 (9th Cir. 1984) (citing exam ples of judicially noticed public records).
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Petitioner does appropriately explain how he is factually innocent of principal or aider and
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abettor liability. Petitioner lists actions taken by other co-defendants, but fails to present any
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factual basis as to why he is innocent.
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Based on the foregoing, the Court finds that Petitioner has not demonstrated Section
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2255 constitutes an "inadequate or ineffective" remedy for raising his claims. Accordingly,
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Section 2241 is not the proper avenue for raising Petitioner's claims, and the petition should
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be dismissed for lack of jurisdiction.
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III.
RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that:
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The petition for writ of habeas corpus be DISMISSED; and
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The Clerk of Court be directed to enter judgment, terminating this action.
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These Findings and Recommendations are 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 being served with a copy, Petitioner may file written
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objections with the Court. Such a document should be captioned "Objections to Magistrate
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Judge's Findings and Recommendations. The Court will then review the Magistrate Judge's
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ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections
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within the specified time may waive the right to appeal the District Court's order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ci4d6
November 21, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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