Norwood v. Copenhaver

Filing 6

FINDINGS and RECOMMENDATION Regarding 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Michael J. Seng on 5/12/2014, referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:14-cv-00574
IVORY NORWOOD,

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MJS (HC)

FINDINGS
AND
RECOMMENDATION
REGARDING PETITION FOR WRIT OF
Petitioner,
HABEAS CORPUS

v.

(Doc. 1)

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PAUL COPENHAVER, Warden,
Respondent.

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241.
Petitioner filed the instant habeas petition in this Court on April 21, 2014. He is
currently incarcerated at United States Penitentiary Atwater.

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On August 12, 2008, in the Middle District of Florida, in a written plea agreement,

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Petitioner pled guilty pursuant to one count of conspiracy to possess with intent to

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distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(b)(1)(A)(ii),

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and one count of possession of a firearm in furtherance of a drug trafficking crime, in

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violation of 18 U.S.C. § 924(c). Norwood v. United States, 2010 U.S. Dist. LEXIS 78543,

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1-2 (M.D. Fla. July 12, 2010). On October 2, 2008, the Court accepted Petitioner's guilty

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plea and adjudicated him guilty. Id. On November 25, 2008, the Court sentenced
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Petitioner to 120 months incarceration as to count one, and 60 months incarceration as

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to count two. Id.

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As a condition of his plea agreement, Petitioner waived his right to appeal the

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conviction. However, on November 24, 2009, Norwood filed a 28 U.S.C. § 2255 motion

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raising the claims of ineffective assistance of counsel. Norwood v. United States, 2010

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U.S. Dist. LEXIS 78543 at 3-4. Of specific note, Petitioner claimed that counsel was

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ineffective for advising him to waive his right to appeal when counsel was aware of a

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pending case, Johnson v. United States, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010), that

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raised a legal argument which might influence whether he would qualify as a career

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offender. Id. The court denied the motion claiming that Petitioner had "not shown that his

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trial counsel was ineffective for failing to predict the development of the law." Id.

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In the instant petition, Petitioner argues that his prior conviction for simple battery

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was not a violent felony under the Armed Career Criminal Act ("ACCA"). He contends

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that he is actually innocent of the ACCA sentencing designation and should be released

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since his term for the underlying conviction has been served.

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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

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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA applies to the

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petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,

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1499 (9th Cir. 1997).

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The Rules Governing Section 2254 Cases in the United States District Courts

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(Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28

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U.S.C. § 2241. Habeas Rule 1(b). Habeas Rule 4 requires the Court to make a

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preliminary review of each petition for writ of habeas corpus. The Court must summarily

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dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that

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the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v.

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Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490

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(9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief
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available to the Petitioner; 2) state the facts supporting each ground; and 3) state the

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relief requested. Notice pleading is not sufficient; rather, the petition must state facts that

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point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976

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Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S.

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63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably

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incredible are subject to summary dismissal. 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

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own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or

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after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule

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8, 1976 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.

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1988). In such cases, only the sentencing court has jurisdiction. Id. at 1163. A prisoner

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may not collaterally attack a federal conviction or sentence by way of a petition for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861,

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865 (9th Cir. 2000) (“Generally, motions to contest the legality of a sentence must be

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filed under § 2255 in the sentencing court, while petitions that challenge the manner,

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location, or conditions of a sentence's execution must be brought pursuant to § 2241 in

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the custodial court.”); Tripati, 843 F.2d at 1162.

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In contrast, a federal prisoner challenging the manner, location, or conditions of

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that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C.

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§ 2241. Hernandez, 204 F.3d at 865. Here, Petitioner is challenging the validity and

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constitutionality of his conviction. Therefore, the appropriate procedure would be to file a

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motion pursuant to § 2255 and not a 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
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motion under § 2255 is "inadequate or ineffective to test the validity of his detention."

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Alaimalo v. United States, 636 F.3d 1092, 1096 (9th Cir. 2011), citing Harrison v. Ollison,

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519 F.3d 952, 956 (9th Cir. 2008). "This is called the 'savings clause' or 'escape hatch' of

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§ 2255." Id. Furthermore, § 2255 petitions are rarely found to be inadequate or

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ineffective. Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court's denial of a prior § 2255

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

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1988) (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition

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inadequate). 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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The Ninth Circuit has also “held that a § 2241 petition is available under the

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„escape hatch‟ of § 2255 when a petitioner (1) makes a claim of actual innocence, and

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(2) has not had an „unobstructed procedural shot‟ at presenting that claim. Stephens v.

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Herrera, 464 F.3d 895, 898 (9th Cir. 2006).

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Petitioner fails to meet either of these requirements. In this case, Petitioner is

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challenging the validity and constitutionality of his federal sentence imposed by a federal

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

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appropriate procedure would be to file a motion pursuant to § 2255 in the sentencing

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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

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has already filed a § 2255 motion and that motion has been denied. Under AEDPA, a

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prisoner may not bring a second or successive Section 2255 motion in district court

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unless "a panel of the appropriate court of appeals" certifies that the motion contains: (1)

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newly discovered evidence that, if proven and viewed in light of the evidence as a whole,

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would be sufficient to establish by clear and convincing evidence that no reasonable

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factfinder would have found the movant guilty of the offense; or (2) a new rule of

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constitutional law, made retroactive to cases on collateral review by the Supreme Court,

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that was previously unavailable. 28 U.S.C. § 2255; see Harrison v. Ollison, 519 F.3d

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952, 955 (9th Cir. 2008). Petitioner fails to meet either of these requirements. First,
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newly discovered evidence is not at issue in this case. Second, Petitioner does not cite

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to any cases, and the Court has found none, finding that the United States Supreme

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Court decisions, upon which Petitioner's claims are based, are "new rules" of

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constitutional law that are retroactively applicable. Accordingly, it appears that Petitioner

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does not qualify to file a successive Section 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

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Section 2255 inadequate or ineffective. See Moore v. Reno, 185 F.3d 1054, 1055 (9th

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Cir. 1999) (concluding that a Section 2255 movant may not avoid the limitations imposed

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on successive petitions by styling his petition as one pursuant to Section 2241 rather

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than Section 2255, and that AEDPA required dismissal of petitioner's successive Section

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

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made retroactive by the Supreme Court nor on new evidence). To the extent Petitioner

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may argue that his only remedy is to pursue his claims via a habeas petition pursuant to

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Section 2241 because a panel of the circuit court would refuse to certify a second or

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successive motion under Section 2255, Petitioner's argument fails. Section 2241 "is not

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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

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under the gatekeeping provisions of [Section] 2255." Lorentsen, 223 F.3d at 953.

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Further, as previously stated, the remedy under Section 2255 usually will not be deemed

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

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or because a remedy under that section is procedurally barred. Id. at 953 (stating that

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the general rule in the Ninth Circuit is that "the ban on unauthorized second or

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successive petitions does not per se make § 2255 'inadequate or ineffective' "); see also

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United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 2001) (procedural limits on

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filing second or successive Section 2255 motion may not be circumvented by invoking

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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
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to file a successive Section 2255 motion, and stating that dismissal of a subsequent

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Section 2255 motion does not render federal habeas relief an ineffective or inadequate

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remedy); Tripati, 843 F.2d at 1162-63.

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In addition, Petitioner has failed to demonstrate that he has never had an

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unobstructed procedural opportunity to present his claims to the sentencing court.

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Petitioner bases his claims on the Supreme Court decision in Johnson v. United States,

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130 S.Ct. 1265, 176 L. Ed. 2d 1 (2010). Johnson was decided prior to the decision in

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Petitioner's 2255 motion filed in the sentencing court on November 13, 2009 and

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decided on July 12, 2010. Therefore, the basis for his claim was available at the time the

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sentencing court reviewed his claim.

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Moreover, Petitioner has failed to demonstrate that his claims qualify under the

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savings clause of Section 2255 because Petitioner's claims are not proper claims of

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"actual innocence." In the Ninth Circuit, a claim of actual innocence for purposes of the

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Section 2255 savings clause is tested by the standard articulated by the United States

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Supreme Court in Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed.

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2d 828 (1998). Stephens, 464 F.3d 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."

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

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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

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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

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which he was convicted. Rather, he claims that, for sentencing purposes, he does not

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have the requisite qualifying prior "violent felony" convictions and, thus, he is actually

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innocent of being designated a "Career Offender" based on his prior convictions for

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battery. 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
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imposed. See Ivy, 328 F.3d at 1060; Lorentsen, 223 F.3d at 954 (to establish jurisdiction

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under Section 2241, petitioner must allege that he is "'actually innocent' of the crime of

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conviction"); Edwards v. Daniels, 2006 U.S. Dist. LEXIS 94750, at *7, 2006 WL 3877525

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(D.Or. 2006) ("Petitioner's assertion that he is actually innocent of a portion of his

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sentence does not qualify him for the 'escape hatch' of § 2255 because he must allege

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that he is 'legally innocent of the crime for which he has been convicted,' not the

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sentence imposed."), adopted by Edwards v. Daniels, 2007 U.S. Dist. LEXIS 12356,

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2007 WL 608115 (D.Or. 2007). Therefore, the instant § 2241 petition does not fit within

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the exception to the general bar against using Section 2241 to collaterally attack a

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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

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Section 2241 when relief is not available under Section 2255 because the petitioner had

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not shown actual innocence); see also Stephens, 464 F.3d at 898-99 (concluding that,

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although petitioner satisfied the requirement of not having had an "unobstructed

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procedural shot" at presenting his instructional error claim under Richardson v. United

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States, 526 U.S. 813, 819, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999) because the claim

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did not become available until Richardson was decided eight years after his first Section

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2255 motion had been denied and the claim did not satisfy the requirements for a

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second or successive Section 2255 motion, petitioner could not satisfy the actual

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

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escape hatch exception of Section 2255); Harrison, 519 F.3d at 959 ("[A] motion meets

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the escape hatch criteria of § 2255 'when a petitioner (1) makes a claim of actual

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innocence, and (2) has not had an unobstructed procedural shot at presenting that

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claim.'").

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Accordingly, the Court concludes that Petitioner has not demonstrated that

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Section 2255 constitutes an "inadequate or ineffective" remedy for raising his claims.

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Accordingly, Section 2241 is not the proper statute for raising Petitioner's claims, and the

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petition should be dismissed for lack of jurisdiction.
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III.

RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that the petition for writ

of habeas corpus be DISMISSED.

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These Findings and Recommendations are submitted to the assigned United

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

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and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern

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District of California. Within thirty (30) days after being served with a copy, Petitioner

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may file written objections with the Court. Such a document should be captioned

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"Objections to Magistrate Judge's Findings and Recommendations. The Court will then

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review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is

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advised that failure to file objections within the specified time may waive the right to

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appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

May 12, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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