Chin v. Copenhaven

Filing 9

FINDINGS and RECOMMENDATIONS Recommending that the Instant 1 Petition for Writ of Habeas Corpus be Dismissed signed by Magistrate Judge Barbara A. McAuliffe on 12/10/2012. Referred to Judge Ishii; Objections to F&R due by 1/14/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JERMOL CHIN,

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1:12-cv-01816-AWI-BAM (HC)
Petitioner,

FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

v.

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[Doc. 1]
PAUL COPENHAVEN,

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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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Petitioner filed the instant petition for writ of habeas corpus on November 6, 2012. In the
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United States District Court for the District of Maryland, Petitioner plead guilty to being a felon
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in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Petitioner was sentenced to 180
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months in prison and is currently incarcerated at the United States Penitentiary in Atwater,
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California.
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Petitioner’s conviction was affirmed on appeal, and the United States Supreme Court
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denied Petitioner’s petition for writ of certiorari. (Pet. at 2, 5.)
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On August 13, 2009, Petitioner filed a motion to vacate, set aside, or correct the judgment
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pursuant to 28 U.S.C. § 2255, which was denied on January 6, 2010. Id. at 2. The Court of
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Appeal denied a certificate of appealability and dismissed the appeal. Id.
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Petitioner subsequently filed a second and successive § 2255 motion which was also
denied. Id.
DISCUSSION

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

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

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A federal prisoner authorized to seek relief under § 2255 may seek relief under § 2241 if

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he can show that the remedy available under § 2255 is "inadequate or ineffective to test the

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validity of his detention." Hernandez v. Campbell, 204 F.3d 861, 864-5 (9th Cir.2000); United

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States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting § 2255). The Ninth Circuit has

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recognized that it is a very narrow exception. Id; Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003)

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(a petitioner must show actual innocence and that he never had the opportunity to raise it by

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motion to demonstrate that § 2255 is inadequate or ineffective); Moore v. Reno, 185 F.3d 1054,

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1055 (9th Cir.1999) (per curium) (holding that the AEDPA’s filing limitations on § 2255

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Motions does not render § 2255 inadequate or ineffective); Aronson v. May, 85 S.Ct. 3, 5 (1964)
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(a court’s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Lorentsen

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v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) (same); Tripati v. Henman, 843 F.2d at 1162-63 (9th

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Cir.1988) (a petitioner's fears 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); see United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 2001)

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(procedural requirements of § 2255 may not be circumvented by invoking the All Writs Act, 28

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U.S.C. § 1651). The burden is on the petitioner to show that the remedy is inadequate or

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ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).

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Because the current petition was filed after April 24, 1996, the provisions of the

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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current

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petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). A federal court must dismiss a second or

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successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The

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court must also dismiss a second or successive petition raising a new ground unless the petitioner

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can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis

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of the claim was not previously discoverable through due diligence, and these new facts establish

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by clear and convincing evidence that but for the constitutional error, no reasonable factfinder

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would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B).

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However, it is not the district court that decides whether a second or successive petition meets

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these requirements, which allow a petitioner to file a second or successive petition.

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Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by

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this section is filed in the district court, the applicant shall move in the appropriate court of

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appeals for an order authorizing the district court to consider the application." In other words,

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Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive

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petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must

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dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave

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to file the petition because a district court lacks subject-matter jurisdiction over a second or

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successive petition. See United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998) (failure to

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request the requisite authorization to file a second or successive § 2255 motion deprives the
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district court of jurisdiction).
In the instant petition, Petitioner contends the sentencing court improperly enhanced his

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sentence by finding that he suffered three prior serious and felonies under 18 U.S.C. §

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924)2)(A)(ii). Petitioner is challenging the validity of his sentence and not the execution of such

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sentence. Therefore, section 2255 is the appropriate remedy. However, Petitioner makes no

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showing that he was granted permission to file a successive § 2255 motion as the court of appeal

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denied his request. Section 2241 “is not available under the inadequate-or-ineffective-remedy

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escape hatch of [Section] 2255 merely because the court of appeals refuses to certify a second or

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successive motion under the gatekeeping provisions of [Section] 2255.” Lorentsen v. Hood, 223

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F.3d at 953. Further, the remedy under Section 2255 usually will not be deemed inadequate or

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ineffective merely because a previous Section 2255 motion was denied, or because a remedy

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under that section is procedurally barred. Id. at 953 (stating that the general rule in the Ninth

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Circuit is that “the ban on unauthorized second or successive petitions does not per se make a §

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2255 ‘inadequate or ineffective.’”).

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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.”

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In the Ninth Circuit, a claim of actual innocence for purposes of the Section 2255 savings clause

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is 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 v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006). In Bousley,

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the 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.” Bousley, 523 U.S. at 623 (internal quotation marks omitted). Petitioner bears

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the burden of proof on this issue by a preponderance of the evidence, and he must show not just

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that the evidence against him was weak, but that it was so weak that “no reasonable juror” would

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have convicted him. Lorensten v. Hood, 223 F.3d at 954.

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Petitioner does not assert that he is factually innocent of the crime for which he was

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convicted. Rather, he claims that, for sentencing purposes, he does not have the requisite

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qualifying prior “violent felony” convictions and, thus, he is actually innocent of being
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designated a “Career Offender” based on his conviction for being a felon in possession of a

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firearm and his prior convictions. Under the savings clause, however, Petitioner must

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demonstrate that he is factually innocent of the crime for which he has been convicted, not the

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sentence imposed. See Ivy v. Pontesso, 328 F.3d at 1060; Lorentsen v. Hood, 223 F.3d at 954 (to

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establish jurisdiction under Section 2241, petitioner must allege that he is “‘actually innocent’ of

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the crime of conviction”).
RECOMMENDATION

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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The instant petition for writ of habeas corpus be DISMISSED; and

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The Clerk of Court be directed to terminate this action.

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This Findings and Recommendation is submitted to the assigned United States District

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Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California.

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Within thirty (30) days after being served with a copy, any party may file written objections with

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the court and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served

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and filed within fourteen (14) days after service of the objections. The Court will then review the

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Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
10c20k

December 10, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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