Bennit E. Hayes v. Copenhaver

Filing 5

ORDER DISMISSING Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Enter Judgment and Terminate Case; ORDER DECLINING Issuance of Certificate of Appealability, signed by Magistrate Judge Gary S. Austin on 8/7/2012. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BENNIT E. HAYES, JR.,

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1:12-CV-01113 GSA HC

Petitioner,

ORDER DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS

v.
ORDER DIRECTING CLERK OF COURT TO
ENTER JUDGMENT AND TERMINATE
CASE

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P. COPENHAVER,
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Respondent.
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/

ORDER DECLINING ISSUANCE OF
CERTIFICATE OF APPEALABILITY

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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. He has consented to the jurisdiction of the magistrate judge
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pursuant to 28 U.S.C. § 636(c).
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Petitioner filed the instant petition for writ of habeas corpus on July 9, 2012. He is
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currently serving a life sentence for his 2003 conviction in the United States District Court for
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the Northern District of Florida. Petitioner contends that the United States Supreme Court
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decision in Carachuri-Rosendo v. Holder, ___ U.S. ___, 130 S.Ct. 2577 (2010) applies
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retroactively to his criminal case thereby rendering him actually innocent of sentencing
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enhancements imposed pursuant to 21 U.S.C. § 851.
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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 sentence

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under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); Thompson v.

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Smith, 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997);

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Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing

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court has jurisdiction. Tripati, 843 F.2d at 1163. A prisoner may not collaterally attack a federal

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conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. §

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2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see

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also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980).

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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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Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d

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175, 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991);

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United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476,

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478-79 (3rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987);

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Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).

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In this case, Petitioner is challenging the validity and constitutionality of his sentence

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rather than an error in the administration of his sentence. Therefore, the appropriate procedure

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would be to file a motion pursuant to § 2255 and not a habeas petition pursuant to § 2241.

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In rare situations, a federal prisoner authorized to seek relief under § 2255 may seek relief

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under § 2241 if he can show the remedy available under § 2255 to be "inadequate or ineffective

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to test the validity of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997)

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(quoting § 2255). Although there is little guidance from any court on when § 2255 is an

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inadequate or ineffective remedy, the Ninth Circuit has recognized that it is a very narrow

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exception. Id; Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s denial of a prior § 2255 motion is

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insufficient to render § 2255 inadequate.); Tripati, 843 F.2d at 1162-63 (9th Cir.1988) (a

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petitioner's fears of bias or unequal treatment do not render a § 2255 petition inadequate);

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Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 (9th

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Cir.1956). The burden is on the 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).
The Ninth Circuit has also “held that a § 2241 petition is available under the ‘escape

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hatch’ of § 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has not had an

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‘unobstructed procedural shot’ at presenting that claim.” Stephens v. Herrera, 464 F.3d 895, 898

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(9th Cir.2006).

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Petitioner contends he has not had an unobstructed procedural shot at presenting his claim

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because the Eleventh Circuit has rejected his application to file a successive § 2255 motion.

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Petitioner’s argument is not persuasive. His inability to meet the statutory requirements for filing

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a successive § 2255 motion does not automatically render the remedy under § 2255 inadequate or

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ineffective. See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (concluding that a § 2255

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movant may not avoid the limitations imposed on successive petitions by styling his petition as

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one pursuant to § 2241 rather than § 2255, and that the AEDPA required dismissal of petitioner's

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successive § 2255 motion because his claim was based neither on a new rule of constitutional

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law made retroactive by the Supreme Court nor on new evidence). Relief via § 2241 “is not

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available under the inadequate-or-ineffective-remedy escape hatch of § 2255 merely because the

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court of appeals refuses to certify a second or successive motion under the gatekeeping

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provisions of § 2255.” Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir.2000). Further, as

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previously stated, the remedy under § 2255 usually will not be deemed inadequate or ineffective

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merely because a previous § 2255 motion was denied, or because a remedy under that section is

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procedurally barred. Id. at 953 (stating that the general rule in the Ninth Circuit is that “the ban

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on unauthorized second or successive petitions does not per se make § 2255 ‘inadequate or

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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 § 2255 remedy was ineffective because he was denied permission to file a

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successive § 2255 motion, and stating that dismissal of a subsequent § 2255 motion does not

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render federal habeas relief an ineffective or inadequate remedy); Tripati, 843 F.2d at 1162–63.

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Furthermore, 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 (1998), the Supreme Court explained that, “[t]o establish

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actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely

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than not that no reasonable juror would have convicted him.” Id. at 623 (internal quotation

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marks omitted). Petitioner bears the burden of proof on this issue by a preponderance of the

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evidence, and he must show not just that the evidence against him was weak, but that it was so

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weak that “no reasonable juror” would have convicted him. 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 convictions which subjected him to a mandatory life sentence enhancement.

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Under the savings clause, however, Petitioner must demonstrate that he is factually innocent of

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the crime for which he has been convicted, not the sentence imposed. See Ivy v. Pontesso, 328

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F.3d, 1057 1060 (9th Cir. 2003); Lorentsen, 223 F.3d at 954 (to establish jurisdiction under

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Section 2241, petitioner must allege that he is “‘actually innocent’ of the crime of conviction”);

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Stephens, 464 F.3d at 898–99 (concluding that, although petitioner satisfied the requirement of

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not having had an “unobstructed procedural shot” at presenting his claim, petitioner could not

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satisfy the actual innocence requirement as articulated in Bousley and, thus, failed to properly

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invoke the escape hatch exception of § 2255).

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Based on the foregoing, the Court finds that Petitioner has not demonstrated 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 avenue for raising Petitioner’s claims, and the petition should be dismissed

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for lack of jurisdiction.

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CERTIFICATE OF APPEALABILITY

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A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district

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court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v.

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Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a

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certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
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(a) In a habeas corpus proceeding or a proceeding under section 2255 before a
district judge, the final order shall be subject to review, on appeal, by the court
of appeals for the circuit in which the proceeding is held.

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(b) There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial
a person charged with a criminal offense against the United States, or to test the
validity of such person’s detention pending removal proceedings.

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(c)
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(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from–
(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional right.

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(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).

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If a court denies a petitioner’s petition, the court may only issue a certificate of

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appealability “if jurists of reason could disagree with the district court’s resolution of his

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constitutional claims or that jurists could conclude the issues presented are adequate to deserve

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encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473,

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484 (2000). While the petitioner is not required to prove the merits of his case, he must

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demonstrate “something more than the absence of frivolity or the existence of mere good faith on

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his . . . part.” Miller-El, 537 U.S. at 338.

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In the present case, the Court finds that reasonable jurists would not find the Court’s

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determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or

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deserving of encouragement to proceed further. Petitioner has not made the required substantial

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showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to

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issue a certificate of appealability.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE;

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The Clerk of Court is DIRECTED to enter judgment and terminate the case; and

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The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.

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Dated:
6i0kij

August 7, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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