Oaks v. Copenhaver

Filing 6

FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DISMISSED with prejudice for lack of jurisdiction ;re 1 Petition for Writ of Habeas Corpus filed by Tyrone S. Oaks ; referred to Judge O'Neill, signed by Magistrate Judge Gary S. Austin on 06/3/14. Objections to F&R due by 7/7/2014 (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE S. OAKS, 12 13 14 15 Petitioner, v. PAUL COPENHAVER, Respondent. 16 ) ) ) ) ) ) ) ) ) ) 1:14-cv-00703 LJO GSA HC FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS 17 18 19 20 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is currently incarcerated at the United States Penitentiary in Atwater, California. He 21 challenges his 2008 conviction in the United States District Court for the District of Minnesota for 22 violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). He states he appealed to the Eighth Circuit Court of 23 Appeals and the appeal was denied. He states he then filed a motion pursuant to 28 U.S.C. § 2255 in 24 the United States District Court for the District of Minnesota. The § 2255 motion was denied. He 25 states he then filed a second motion under § 2255 but the motion was denied as successive. He filed a 26 petition for relief in the Eighth Circuit, and the court denied the petition in full. 27 28 1 1 Petitioner filed the instant petition for writ of habeas corpus on May 12, 2014. He claims that 2 due to the Supreme Court‟s recent statutory interpretation of what constitutes a prior conviction under 3 the Armed Career Criminal Act, he is now sentenced above the statutory maximum allowed by law. 4 DISCUSSION 5 A federal prisoner who wishes to challenge the validity or constitutionality of his federal 6 conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence 7 under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also Stephens v. 8 Herrera, 464 F.3d 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007); Thompson v. Smith, 9 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997); Broussard v. 10 Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing court has 11 jurisdiction. Tripati, 843 F.2d at 1163. A prisoner may not collaterally attack a federal conviction or 12 sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. 13 United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. 14 Flores, 616 F.2d 840, 842 (5th Cir.1980). 15 In contrast, a prisoner challenging the manner, location, or conditions of that sentence's 16 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district where 17 the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65 18 (9th Cir.2000) (per curiam); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990); Capaldi v. 19 Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 20 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 21 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3rd Cir. 1991); United 22 States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987). “The general rule is that a motion under 28 23 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, 24 and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 25 28 U.S.C. § 2241.” Stephens, 464 F.3d at 897 (citations omitted). 26 As Petitioner acknowledges, an exception exists by which a federal prisoner may seek relief 27 under § 2241 if he can demonstrate the remedy available under § 2255 to be "inadequate or ineffective 28 to test the validity of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting 2 1 28 U.S.C. § 2255); see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a 2 very narrow exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.2003). The remedy under § 3 2255 usually will not be deemed inadequate or ineffective merely because a prior § 2255 motion was 4 denied, or because a remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 5 3, 5 (1964) (a court‟s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); 6 Tripati, 843 F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255 7 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229 8 F.2d 582 (9th Cir.1956). 9 The Ninth Circuit has held that Section 2255 provides an „inadequate and ineffective‟ remedy 10 (and thus that the petitioner may proceed under Section 2241) when the petitioner: (1) makes a claim 11 of actual innocence; and, (2) has never had an „unobstructed procedural shot‟ at presenting the claim. 12 Stephens, 464 F.3d at 898. The burden is on the petitioner to show that the remedy is inadequate or 13 ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir.1963). 14 In this case, Petitioner is challenging the validity and constitutionality of his federal sentence 15 as imposed by the United States District Court for the District of Minnesota, rather than an error in the 16 administration of his sentence. Therefore, the appropriate procedure would be to file a motion 17 pursuant to § 2255 in the District of Minnesota, not a habeas petition pursuant to § 2241 in this Court. 18 Petitioner acknowledges this fact, but argues he should be allowed to pass through the savings clause 19 because his prior § 2255 motion was denied as successive. The argument is unavailing. As noted 20 above, the remedy under § 2255 usually will not be deemed inadequate or ineffective merely because 21 the remedy under that section is procedurally barred. Aronson, 85 S.Ct. at 5. In addition, Petitioner 22 states he presented his claims to the Eighth Circuit and the petition was denied. Therefore, Petitioner 23 fails to show that he has never had an unobstructed procedural opportunity to present his claims. 24 Moreover, Petitioner has failed to demonstrate that his claims qualify under the savings clause 25 of Section 2255 because Petitioner's claims are not proper claims of “actual innocence.” In the Ninth 26 Circuit, a claim of actual innocence for purposes of the Section 2255 savings clause is tested by the 27 standard articulated by the United States Supreme Court in Bousley v. United States, 523 U.S. 614 28 (1998). Stephens, 464 U.S. at 898. In Bousley, the Supreme Court explained that, “[t]o establish actual 3 1 innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that 2 no reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 (internal quotation marks 3 omitted). Petitioner bears the burden of proof on this issue by a preponderance of the evidence, and he 4 must show not just that the evidence against him was weak, but that it was so weak that “no reasonable 5 juror” would have convicted him. Lorentsen, 223 F.3d at 954. In this case, Petitioner does not assert 6 that he is factually innocent of the crime for which he was convicted. Rather, he takes issue with his 7 sentence. Under the savings clause, Petitioner must demonstrate that he is actually innocent of the 8 crime for which he has been convicted, not the sentence imposed. See Ivy, 328 F.3d at 1060; 9 Lorentsen, 223 F.3d at 954 (to establish jurisdiction under Section 2241, petitioner must allege that he 10 is “„actually innocent‟ of the crime of conviction”); Edwards v. Daniels, 2006 U.S. Dist. LEXIS 11 94750, at *7, 2006 WL 3877525 (D.Or.2006) (“Petitioner's assertion that he is actually innocent of a 12 portion of his sentence does not qualify him for the „escape hatch‟ of § 2255 because he must allege 13 that he is „legally innocent of the crime for which he has been convicted,‟ not the sentence imposed.”), 14 adopted by Edwards v. Daniels, 2007 U.S. Dist. LEXIS 12356, 2007 WL 608115 (D.Or.2007). 15 Therefore, the instant § 2241 petition does not fit within the exception to the general bar against using 16 Section 2241 to collaterally attack a conviction or sentence imposed by a federal court. See Lorentsen, 17 223 F.3d at 954 (declining to decide whether federal prisoners who are actually innocent may resort to 18 Section 2241 when relief is not available under Section 2255 because the petitioner had not shown 19 actual innocence); see also Stephens, 464 F.3d at 898-99 (concluding that, although petitioner satisfied 20 the requirement of not having had an “unobstructed procedural shot” at presenting his instructional 21 error claim under Richardson v. United States, 526 U.S. 813, 119 (1999), petitioner could not satisfy 22 the actual innocence requirement as articulated in Bousley and, thus, failed to properly invoke the 23 escape hatch exception of Section 2255); Harrison, 519 F.3d at 959 (“[A] motion meets the escape 24 hatch criteria of § 2255 „when a petitioner (1) makes a claim of actual innocence, and (2) has not had 25 an unobstructed procedural shot at presenting that claim.‟”). 26 Accordingly, the Court concludes that Petitioner has not demonstrated that Section 2255 27 constitutes an “inadequate or ineffective” remedy for raising his claims. Section 2241 is not the 28 4 1 proper statute for raising Petitioner's claims, and the petition should be dismissed for lack of 2 jurisdiction. RECOMMENDATION 3 4 5 Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas corpus be DISMISSED with prejudice for lack of jurisdiction. 6 This Findings and Recommendation is submitted to the Honorable Lawrence J. O‟Neill, United 7 States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 8 of the Local Rules of Practice for the United States District Court, Eastern District of California. 9 Within thirty (30) days after being served with a copy, Petitioner may file written objections with the 10 Court. Such a document should be captioned “Objections to Magistrate Judge‟s Findings and 11 Recommendation.” The Court will then review the Magistrate Judge‟s ruling pursuant to 28 U.S.C. § 12 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive 13 the right to appeal the District Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 16 17 IT IS SO ORDERED. Dated: June 3, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 5

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