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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TYRONE S. OAKS,

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Petitioner,
v.
PAUL COPENHAVER,
Respondent.

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1:14-cv-00703 LJO GSA HC
FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF HABEAS
CORPUS

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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 is currently incarcerated at the United States Penitentiary in Atwater, California. He

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challenges his 2008 conviction in the United States District Court for the District of Minnesota for

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violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). He states he appealed to the Eighth Circuit Court of

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Appeals and the appeal was denied. He states he then filed a motion pursuant to 28 U.S.C. § 2255 in

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the United States District Court for the District of Minnesota. The § 2255 motion was denied. He

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states he then filed a second motion under § 2255 but the motion was denied as successive. He filed a

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petition for relief in the Eighth Circuit, and the court denied the petition in full.

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Petitioner filed the instant petition for writ of habeas corpus on May 12, 2014. He claims that

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due to the Supreme Court‟s recent statutory interpretation of what constitutes a prior conviction under

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the Armed Career Criminal Act, he is now sentenced above the statutory maximum allowed by law.

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DISCUSSION

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A federal prisoner who wishes to challenge the validity or constitutionality of his federal

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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); see also Stephens v.

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Herrera, 464 F.3d 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007); Thompson v. Smith,

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

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

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

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sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v.

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

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Flores, 616 F.2d 840, 842 (5th Cir.1980).

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In contrast, a prisoner challenging the manner, location, or conditions of that sentence's

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execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district where

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the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65

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(9th Cir.2000) (per curiam); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990); Capaldi v.

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Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 177 (5th Cir.

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1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925

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F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3rd Cir. 1991); United

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States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987). “The general rule is that a motion under 28

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U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention,

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and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under

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28 U.S.C. § 2241.” Stephens, 464 F.3d at 897 (citations omitted).

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As Petitioner acknowledges, an exception exists by which a federal prisoner may seek relief

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under § 2241 if he can demonstrate 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) (quoting
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28 U.S.C. § 2255); see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a

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very narrow exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.2003). The remedy under §

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2255 usually will not be deemed inadequate or ineffective merely because a prior § 2255 motion was

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denied, or because a remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct.

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3, 5 (1964) (a court‟s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.);

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Tripati, 843 F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255

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

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F.2d 582 (9th Cir.1956).

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The Ninth Circuit has held that Section 2255 provides an „inadequate and ineffective‟ remedy

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(and thus that the petitioner may proceed under Section 2241) when the petitioner: (1) makes a claim

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of actual innocence; and, (2) has never had an „unobstructed procedural shot‟ at presenting the claim.

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Stephens, 464 F.3d at 898. 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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In this case, Petitioner is challenging the validity and constitutionality of his federal sentence

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as imposed by the United States District Court for the District of Minnesota, rather than an error in the

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administration of his sentence. Therefore, the appropriate procedure would be to file a motion

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pursuant to § 2255 in the District of Minnesota, not a habeas petition pursuant to § 2241 in this Court.

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Petitioner acknowledges this fact, but argues he should be allowed to pass through the savings clause

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because his prior § 2255 motion was denied as successive. The argument is unavailing. As noted

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above, the remedy under § 2255 usually will not be deemed inadequate or ineffective merely because

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the remedy under that section is procedurally barred. Aronson, 85 S.Ct. at 5. In addition, Petitioner

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states he presented his claims to the Eighth Circuit and the petition was denied. Therefore, Petitioner

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fails to show that he has never had an unobstructed procedural opportunity to present his claims.

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

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of Section 2255 because Petitioner's claims are not proper claims of “actual innocence.” In the Ninth

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Circuit, a claim of actual innocence for purposes of the Section 2255 savings clause is tested by the

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standard articulated by the United States Supreme Court in Bousley v. United States, 523 U.S. 614

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(1998). Stephens, 464 U.S. at 898. In Bousley, the Supreme Court explained that, “[t]o establish actual
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innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that

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no reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 (internal quotation marks

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omitted). Petitioner bears the burden of proof on this issue by a preponderance of the evidence, and he

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must show not just 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. In this case, Petitioner does not assert

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that he is factually innocent of the crime for which he was convicted. Rather, he takes issue with his

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sentence. Under the savings clause, Petitioner must demonstrate that he is actually innocent of the

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crime for which he has been convicted, not the sentence imposed. See Ivy, 328 F.3d at 1060;

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Lorentsen, 223 F.3d at 954 (to establish jurisdiction under Section 2241, petitioner must allege that he

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is “„actually innocent‟ of the crime of conviction”); Edwards v. Daniels, 2006 U.S. Dist. LEXIS

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94750, at *7, 2006 WL 3877525 (D.Or.2006) (“Petitioner's assertion that he is actually innocent of a

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portion of his 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 sentence imposed.”),

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adopted by Edwards v. Daniels, 2007 U.S. Dist. LEXIS 12356, 2007 WL 608115 (D.Or.2007).

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Therefore, the instant § 2241 petition does not fit within the exception to the general bar against using

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Section 2241 to collaterally attack a conviction or sentence imposed by a federal court. See Lorentsen,

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223 F.3d at 954 (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 not shown

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actual innocence); see also Stephens, 464 F.3d at 898-99 (concluding that, although petitioner satisfied

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the requirement of not having had an “unobstructed procedural shot” at presenting his instructional

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error claim under Richardson v. United States, 526 U.S. 813, 119 (1999), petitioner could not satisfy

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the actual 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 the escape

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

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an unobstructed procedural shot at presenting that claim.‟”).

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Accordingly, the Court concludes that Petitioner has not demonstrated that Section 2255

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constitutes an “inadequate or ineffective” remedy for raising his claims. Section 2241 is not the

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proper statute for raising Petitioner's claims, and the petition should be dismissed for lack of

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jurisdiction.
RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas corpus
be DISMISSED with prejudice for lack of jurisdiction.

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This Findings and Recommendation is submitted to the Honorable Lawrence J. O‟Neill, United

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

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of the 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, Petitioner may file written objections with the

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Court. Such a document should be captioned “Objections to Magistrate Judge‟s Findings and

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Recommendation.” The Court will then review the Magistrate Judge‟s ruling pursuant to 28 U.S.C. §

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636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive

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the right to 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:

June 3, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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