Rios-Vizcarra v. Benov

Filing 6

FINDINGS and RECOMMENDATIONS Recommending that the 1 Petition for Writ of Habeas Corpus be Dismissed signed by Magistrate Judge Michael J. Seng on 8/25/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 9/29/2014. (Sant Agata, S)

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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-00875 LJO MJS (HC)
ROBERTO RIOS-VIZCARRA,

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

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v.

(Doc. 1)

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MICHAEL L. BENOV,
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.

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Petitioner filed the instant habeas petition in this Court on June 9, 2014. He is

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currently incarcerated at Taft Correctional Institution. Petitioner claims arise from his

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February 24, 2004 conviction in the Eastern District of California. Petitioner was found

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guilty of conspiracy to distribute heroin and methamphetamine in violation of 21 U.S.C.

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§§ 841, 846, and conspiracy to launder monetary instruments in violation of 18 U.S.C. §

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1956(h). See United States v. Vizcarra, 2010 U.S. Dist. LEXIS 108420 (E.D. Cal. Oct. 8,

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2010). Petitioner was sentenced to imprisonment in the custody of the U.S. Bureau of

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Prisons for 240 months. Id. Presently, Petitioner argues that he actually innocent of the

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offense because he does not qualify as a career offender under the Armed Career
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Criminal Act. (See generally Pet.)

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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 did not lack an unobstructed opportunity to present his claims in his §

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2255 motion. After conviction, Petitioner sought direct appeal to the Ninth Circuit. The

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appeal was denied on December 11, 2006. United States v. Vizcarra, 210 Fed. Appx.

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670, 671 (9th Cir. 2006). Petitioner then moved to vacate, set aside, or correct his

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federal sentence pursuant to 28 U.S.C. § 2255 asserting that he received ineffective

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assistance of counsel. The Court adopted the recommendation of the Magistrate Judge

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to deny the motion on September 8, 2010. See United States v. Vizcarra, 2010 U.S. Dist.

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LEXIS 93241 (E.D. Cal. Sept. 8, 2010); United States v. Vizcarra, 2010 U.S. Dist. LEXIS

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77537 (E.D. Cal. July 31, 2010). Accordingly, Petitioner had the opportunity to file a first

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§ 2255 motion, and has presented no reason why he has not attempted to file a second

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§ 2255 motion presenting the instant claims.

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While Petitioner states that he is actually innocent of the offense, Petitioner has

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not presented a case of factual innocence. Instead, Petitioner argues that his prior

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crimes that the district court found to be predicate offenses under the Armed Career

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Criminal Act no longer qualify and he should not have been considered a career

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offender. (See Pet.) Petitioner's argument that he should not be treated as a career

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offender is a purely legal claim that has nothing to do with factual innocence.

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Accordingly, it is not a cognizable claim of 'actual innocence' for the purposes of

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qualifying to bring a § 2241 petition under the escape hatch. Marrero v. Ives, 682 F.3d

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1190, 1193-94 (9th Cir. 2012) (collecting similar holdings from other circuits).

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Moreover, even if Petitioner had an unobstructed procedural shot to challenge the

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finding by the district judge that he was a career offender, his claim would fail. Petitioner

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argues that Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013),

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demonstrates that he is not a career offender because his prior offenses should not
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serve as predicate offenses. (See, Pet.) In Descamps, the Supreme Court held that

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"sentencing courts may not apply the modified categorical approach when the crime of

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which the defendant was convicted has a single, indivisible set of elements." Id. at 2282.

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Even assuming Descamps assists Petitioner, the Supreme Court has not made its

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holding retroactive. See Jones v. McGrew, 2014 WL 2002245 at *5 (C.D. Cal. May 15,

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2014) ("Petitioner cannot maintain that Descamps effected a material change in the

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applicable law; the Descamps Court clearly communicated its believe that its ruling in the

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was "dictated" by existing precedent." (citation omitted); Wilson v. Holland, 2014 WL

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517531, *3 (E.D. Ky. Feb. 10, 2014) ("there is no indication in . . . Descamps that the

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Supreme Court made those holdings retroactive to cases on collateral review"); Groves

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v. United States, 2014 WL 2766171, *4 (7th Cir. June 19, 2014) ("To date, the Supreme

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Court has not made Descamps retroactive on collateral review."); Monroe v. U.S., 2013

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WL 6199955, *2 (N.D. Texas Nov. 26, 2013) (the Court "did not declare that [Descamps]

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applied retroactively on collateral attack") (collecting cases). Indeed, it is improbable that

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Descamps announced a new rule of law. According to Descamps, Supreme Court

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"caselaw explaining the categorical approach and its 'modified' counterpart all but

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resolves this case." 133 S. Ct. at 2283. "Under our prior decisions, the inquiry is over."

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Id. at 2286. Accordingly, Petitioner has not met either prong of the savings clause, and

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the Court recommends that the petition be dismissed.

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III.

CERTIFICATE OF APPEALABILITY

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

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a district court's denial of his petition, and an appeal is only allowed in certain

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circumstances.

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statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253,

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which provides as follows:

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Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).

The controlling

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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
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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–

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(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 petition, the court may only issue a certificate of appealability “if

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jurists of reason could disagree with the district court‟s resolution of his constitutional

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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

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U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case,

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he must demonstrate “something more than the absence of frivolity or the existence of

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mere good faith on his . . . part.” Miller-El, 537 U.S. at 338.

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In the present case, reasonable jurists would not find to be debatable or wrong

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the Court's determination that Petitioner is not entitled to federal habeas corpus relief nor

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would they find petitioner deserving of encouragement to proceed further. Petitioner has

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not made the required substantial showing of the denial of a constitutional right.

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Accordingly, the Court hereby declines to issue a certificate of appealability.

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IV.

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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:

August 25, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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