Suarez v. Benov

Filing 6

FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DISMISSED; re 1 Petition for Writ of Habeas Corpus filed by Octavio Hernandez Suarez ; referred to Judge Ishii,signed by Magistrate Judge Michael J. Seng on 8/25/14. Objections to F&R due by 9/29/2014 (Martin-Gill, S)

1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10
11

Case No. 1:14-cv-01189 AWI MJS (HC)
OCTAVIO HERNANDEZ SUAREZ,

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

12
13

v.

(Doc. 1)

14
15
16

MICHAEL L. BENOV,
Respondent.

17
18
19

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241.

20

Petitioner filed the instant habeas petition in this Court on July 30, 2014. He is

21

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

22

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

23

guilty of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§

24

846(a)(1), 841(a)(1), and possession with intent to distribute methamphetamine, aiding

25

and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. See United States

26

v. Suarez, 185 Fed. Appx. 597, 598 (9th Cir. 2006). Petitioner was sentenced to

27

imprisonment in the custody of the U.S. Bureau of Prisons for 240 months. Id. Presently,

28

Petitioner argues that he actually innocent of the offense because he does not qualify as
1

1

a career offender under the Armed Career Criminal Act. (See generally Pet.)

2

I.

SCREENING THE PETITION

3

Because the petition was filed after April 24, 1996, the effective date of the

4

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

5

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

6

1499 (9th Cir. 1997).

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

(9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief

15

available to the Petitioner; 2) state the facts supporting each ground; and 3) state the

16

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

17

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

18

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

19

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

20

incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

21

Further, the Court may dismiss a petition for writ of habeas corpus either on its

22

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

23

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

24

8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

25

II.

JURISDICTION

26

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

27

conviction or sentence must do so by way of a motion to vacate, set aside, or correct the

28

sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.
2

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

motion pursuant to § 2255 and not a habeas petition pursuant to § 2241.

13

The Ninth Circuit has recognized a narrow exception allowing a federal prisoner

14

authorized to seek relief under § 2255 to seek relief under § 2241 if the remedy by

15

motion under § 2255 is "inadequate or ineffective to test the validity of his detention."

16

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

17

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

18

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

19

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

20

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

21

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

22

inadequate). The burden is on the petitioner to show that the remedy is inadequate or

23

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

24

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

25

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

26

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

27

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

28

Petitioner fails to meet either of these requirements. In this case, Petitioner is
3

1

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

2

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

3

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

4

court, not a habeas petition pursuant to § 2241 in this Court.

5

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

6

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

7

appeal was denied on June 16, 2006. United States v. Suarez, 185 Fed. Appx. 597, 598

8

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

9

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

10

of counsel. The Court denied the motion on March 21, 2008. See United States v.

11

Suarez, 2008 U.S. Dist. LEXIS 119542 (E.D. Cal. Mar. 20, 2008). Petitioner then filed a

12

motion to set aside the judgment on the § 2255 motion on June 9, 2010. The motion was

13

denied on June 23, 2010. (See E.D. Cal. Case United States v, Suarez, No. 2:02-cr-

14

00246-WBS-AC, ECF No. 200-01.) Petitioner then filed a motion for reconsideration on

15

July 8, 2010. The motion was likewise denied. (See E.D. Cal. Case United States v,

16

Suarez, No. 2:02-cr-00246-WBS-AC, ECF No. 202-03.)

17

Petitioner filed a second motion to set aside or vacate the judgment on the § 2255

18

motion March 20, 2013. The motion was denied on April 30, 2013. (See E.D. Cal. Case

19

United States v, Suarez, No. 2:02-cr-00246-WBS-AC, ECF No. 215, 218, 220.)

20

Furthermore, Petitioner has previously sought relief by way with a petition for writ of

21

habeas corpus pursuant to 28 U.S.C. § 2241. In the petition, filed on June 14, 2011,

22

Petitioner contended that he was "actually innocent" of the 20 year mandatory minimum

23

sentence under 21 U.S.C. § 841(b)(1)(A) based on the United States Supreme Court

24

decision in Carachuri-Rosendo v. Holder,

25

(2010). Hernandez v. Benov, 2011 U.S. Dist. LEXIS 123921 (E.D. Cal. Oct. 25, 2011).

26

The Magistrate Judge, in recommending dismissal of the petition, stated:

27
28

U.S.

, 130 S.Ct. 2577, 177 L. Ed. 2d 68

Petitioner claims that he did not have an unobstructed opportunity
to present his actual innocence claims in his § 2255 motion and he must
now raise it by way of a § 2241 petition. In Carachuri-Rosendo, the
4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

Supreme Court addressed the applicability of a state's recidivist law to the
aggravated felony determination in an immigration context. Irrespective of
whether the Supreme Court's decision in Carachuri-Rosendo applies to
Petitioner's case, his arguments are not persuasive. It is possible that the
Ninth Circuit Court of Appeals could grant an application to file a second
or successive petition under § 2255 if he were to seek permission.
Therefore, Petitioner fails to demonstrate that he has not had an
unobstructed opportunity to present this claim for review. Moreover, even
if Petitioner had sought authorization from the Ninth Circuit based on the
holding in Carachuri-Rosendo and was unsuccessful, his inability to obtain
such authorization, in and of itself, would not open the section 2255
escape hatch. See Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000)
(Section 2241 jurisdiction is not available merely because the courts of
appeals refused to authorize a second or successive Section 2255
motion). It appears that Petitioner's filing of the instant § 2241 petition is a
transparent attempt to circumvent the requirements attached to filing a §
2255 petition.
Furthermore, Petitioner has failed to demonstrate that his claims
qualify under the savings clause of section 2255 because his claims are
not proper claims of "actual innocence." In Bousley v. United States, 523
U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998), the Supreme Court
explained that, "[t]o establish actual innocence, petitioner must
demonstrate that, in light of all the evidence, it is more likely than not that
no reasonable juror would have convicted him." Id. at 623 (internal
quotation marks omitted). Petitioner bears the burden of proof on this
issue by a preponderance of the evidence, and he must show not just that
the evidence against him was weak, but that it was so weak that "no
reasonable juror" would have convicted him. Lorentsen, 223 F.3d at 954.

22

In this case, Petitioner does not assert that he is factually innocent
of the crime for which he was convicted. Rather, he claims that, for
sentencing purposes, he does not have the requisite qualifying prior
conviction under California law which subjected him to mandatory
enhancement. Under the savings clause, however, Petitioner must
demonstrate that he is factually innocent of the crime for which he has
been convicted, not the sentence imposed. See Ivy v. Pontesso, 328 F.3d
1057 1060 (9th Cir. 2003); Lorentsen, 223 F.3d at 954 (to establish
jurisdiction under Section 2241, petitioner must allege that he is "'actually
innocent' of the crime of conviction.") Based on the foregoing, the Court
finds that Petitioner has not demonstrated Section 2255 constitutes an
"inadequate or ineffective" remedy for raising his claims. Accordingly,
Section 2241 is not the proper avenue for raising Petitioner's claims, and
the petition should be dismissed for lack of jurisdiction.

23

Hernandez v. Benov, 2011 U.S. Dist. LEXIS 123921, 4-7 (E.D. Cal. Oct. 25, 2011). The

24

Court adopted the recommendation of the Magistrate Judge and dismissed the petition

25

on November 7, 2012. Hernandez v. Benov, 2012 U.S. Dist. LEXIS 179819 (E.D. Cal.

26

Dec. 18, 2012). Accordingly, Petitioner as had the opportunity to file multiple § 2255

27

motions, and has presented no reason why he has not attempted to seek approval to file

28

the instant motion as a second or successive § 2255 motion. Petitioner has not shown

16
17
18
19
20
21

5

1

that he lacked an unobstructed opportunity to present his claims in his § 2255 motion.

2

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

3

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

4

that the district court found to be predicate offenses in the Armed Career Criminal Act no

5

longer qualify and he should not have been considered a career offender. (See Pet.)

6

Petitioner's argument that he should not be treated as a career offender is a purely legal

7

claim that has nothing to do with factual innocence. Accordingly, it is not a cognizable

8

claim of 'actual innocence' for the purposes of qualifying to bring a § 2241 petition under

9

the escape hatch. Marrero v. Ives, 682 F.3d 1190, 1193-94 (9th Cir. 2012) (collecting

10

similar holdings from other circuits).

11

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

12

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

13

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

14

demonstrates that he is not a career offender because his prior offenses should not

15

serve as predicate offenses. (See, Pet.) In Descamps, the Supreme Court held that

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

applied retroactively on collateral attack") (collecting cases). Indeed, it is improbable that
6

1

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

2

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

3

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

4

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

5

the Court recommends that the petition be dismissed.

6

III.

CERTIFICATE OF APPEALABILITY

7

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

8

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

9

circumstances.

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

The controlling

10

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

11

which provides as follows:

12
13
14
15
16
17
18

(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.
(b) There shall be no right of appeal from a final order in a proceeding to test the
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.
(c)

(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from–

19

(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

20

(B) the final order in a proceeding under section 2255.

21
22
23
24

(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.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).

25

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

26

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

27

claims or that jurists could conclude the issues presented are adequate to deserve

28

encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529
7

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

IV.

10
11

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

of habeas corpus be DISMISSED.

12

These Findings and Recommendations are submitted to the assigned United

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21
22
23
24

IT IS SO ORDERED.
Dated:

August 25, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

25
26
27
28
8