Barajas v. Benov

Filing 6

FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case, referred to Judge O'Neill, signed by Magistrate Judge Barbara A. McAuliffe on 8/25/2014. Objections to F&R Due Within Thirty Days.(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 CARLOS ALBERTO BARAJAS,

Case No. 1:14-cv-01254-LJO-BAM-HC

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FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION FOR WRIT OF
HABEAS CORPUS (DOC. 1), DECLINE TO
ISSUE A CERTIFICATE OF
APPEALABILITY, AND DIRECT THE CLERK
TO CLOSE THE CASE

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Petitioner,
v.

14 MICHAEL L. BENOV,
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Respondent.

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OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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

The matter has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before the Court is the petition, which was filed on August
11, 2014.
I.

Screening the Petition

The Rules Governing Section 2254 Cases in the United States
District Courts (Habeas Rules) are appropriately applied to
proceedings undertaken pursuant to 28 U.S.C. ' 2241.
1(b).

Habeas Rule

Habeas Rule 4 requires the Court to make a preliminary review
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1 of each petition for writ of habeas corpus.

The Court must

2 summarily dismiss a petition "[i]f it plainly appears from the
3 petition and any attached exhibits that the petitioner is not
4 entitled to relief in the district court....@

Habeas Rule 4;

5 O=Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also
6 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

Habeas

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

Notice pleading is not

10 sufficient; rather, the petition must state facts that point to a
11 real possibility of constitutional error.

Rule 4, Advisory

12 Committee Notes, 1976 Adoption; O=Bremski v. Maass, 915 F.2d at 420
13 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).
14 Allegations in a petition that are vague, conclusory, patently
15 frivolous or false, or palpably incredible are subject to summary
16 dismissal.
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Hendricks v. Vasquez, 908 F.2d at 491.

Further, the Court may dismiss a petition for writ of habeas

18 corpus either on its own motion under Habeas Rule 4, pursuant to the
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respondent's motion to dismiss, or after an answer to the petition
has been filed.

Advisory Committee Notes to Habeas Rule 8, 1976

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

23 2001).

A petition for habeas corpus should not be dismissed without

24 leave to amend unless it appears that no tenable claim for relief
25 can be pleaded were such leave granted.
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13, 14 (9th Cir. 1971).

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Jarvis v. Nelson, 440 F.2d

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In the petition filed on August 11, 2014, Petitioner alleges

2 that he is an inmate of the Taft Correctional Institution serving a
3 sentence of 240 months imposed in 1999 for convictions of controlled
4 substance offenses in the United States District Court for the
5 District of Hawaii.

(Pet., doc. 1, 1.)

Petitioner appealed,

6 raising issues concerning the suppression of evidence seized before
7 his arrest and an Eighth Amendment challenge to his twenty-year
8 mandatory minimum sentence.

The judgment was affirmed by the Ninth

9 Circuit Court of Appeals on April 14, 2000.

He previously brought a

10 motion pursuant to 28 U.S.C. § 2255 raising the ineffective
11 assistance of counsel for failing to challenge a prior drug
12 conviction with a sentence of only ten months in prison, but
13 Petitioner does not allege the date of the § 2255 proceedings or any
14 facts regarding the court’s ruling.
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(Id. at 2, 14.)

Petitioner argues that his prior drug offense is no longer a

16 felony drug offense because it was not punishable by more than one
17 year in prison.

He argues that he is actually innocent of offender

18 information relied upon in sentencing pursuant to 21 U.S.C. § 851
19 because his prior drug offense did not qualify as a felony drug
20 offense based on Descamps v. United States, 570 U.S. –, –, 133 S.Ct.
21 2276 (2013), a criminal appeal in which the Court rejected the use
22 of a modified categorical approach to considering whether certain
23 prior convictions with a single and indivisible set of elements were
24 violent felonies within the meaning of the Armed Career Criminal
25 Act.
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II.

Subject Matter Jurisdiction

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A court will not infer allegations supporting federal

28 jurisdiction; a federal court is presumed to lack jurisdiction in a
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1 particular case unless the contrary affirmatively appears, and thus
2 federal subject matter jurisdiction must always be affirmatively
3 alleged.

Fed. R. Civ. P. 8(a); Stock West, Inc. v. Confederated

4 Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
5 1989).

When a federal court concludes that it lacks subject matter

6 jurisdiction, the court must dismiss the action.

Arbaugh v. Y&H

7 Corp., 546 U.S. 500, 514 (2006); Moore v. Maricopa County Sheriff=s
8 Office, 657 F.3d 890, 894 (9th Cir. 2011).
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Here, although Petitioner is challenging his conviction and

10 sentence, Petitioner argues that he is entitled to proceed pursuant
11 to 28 U.S.C. § 2241 because § 2255 is inadequate and ineffective due
12 to his actual innocence of the crimes and the absence of an
13 unobstructed procedural shot at presenting his claim.
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A.

Inadequate or Ineffective Remedy

A federal prisoner who wishes to challenge his conviction or

16 sentence on the grounds it was imposed in violation of the
17 Constitution or laws of the United States or was otherwise subject
18 to collateral attack must do so by way of a motion to vacate, set
19 aside, or correct the sentence under 28 U.S.C. § 2255.

28 U.S.C.

20 § 2255; Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006);
21 Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988).

In such

22 cases, the motion must be filed in the district where the defendant
23 was sentenced because only the sentencing court has jurisdiction.
24 Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Tripati,
25 843 F.2d at 1163.

Generally, a prisoner may not collaterally attack

26 a federal conviction or sentence by way of a petition for a writ of
27 habeas corpus pursuant to 28 U.S.C. § 2241.
28 464 F.3d at 897;

Tripati, 843 F.2d at 1162.
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Stephens v. Herrera,

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In contrast, a federal prisoner challenging the manner,

2 location, or conditions of that sentence's execution must bring a
3 petition for writ of habeas corpus under 28 U.S.C. § 2241.

Brown v.

4 United States, 610 F.2d 672, 677 (9th Cir. 1990).
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Title 28 U.S.C. § 2255(e) provides as follows:

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An application for a writ of habeas corpus in behalf
of a prisoner who is authorized to apply for relief by
motion pursuant to this section, shall not be entertained
if it appears that the applicant has failed to apply
for relief, by motion, to the court which sentenced him,
or that such court has denied him relief, unless it
also appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.

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11 28 U.S.C. § 2255(e).
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A federal prisoner authorized to seek relief under § 2255 may
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seek relief under § 2241 only if he can show that the remedy
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15 available under § 2255 is "inadequate or ineffective to test the
16 legality of his detention."

United States v. Pirro, 104 F.3d 297,

17 299 (9th Cir. 1997) (quoting § 2255).
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Although there is little

guidance on when § 2255 is an inadequate or ineffective remedy, in
the Ninth Circuit it is recognized that the exception is narrow.
Id.; Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (dismissal

22 of a successive motion pursuant to § 2255 did not render such motion
23 procedure an ineffective or inadequate remedy so as to authorize a
24 federal prisoner to seek habeas relief); Aronson v. May, 85 S.Ct. 3,
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5 (1964) (denial of a prior § 2255 motion is insufficient to render

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§ 2255 inadequate); Tripati, 843 F.2d at 1162-63 (noting that a
petitioner's fears of bias or unequal treatment do not render a
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1 § 2255 petition inadequate); see, United States v. Valdez-Pacheco,
2 237 F.3d 1077 (9th Cir. 2001) (procedural requirements of § 2255 may
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not be circumvented by filing a petition for writ of audita querela
pursuant to the All Writs Act, 28 U.S.C. § 1651).

The burden is on

the petitioner to show that the remedy is inadequate or ineffective.

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

If a

8 petitioner proceeding pursuant to § 2241 fails to meet his burden to
9 demonstrate that the § 2255 remedy is inadequate or ineffective,
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then the § 2241 petition will be dismissed for lack of jurisdiction.
Ivy v. Pontesso, 328 F.3d 1057, 1061 (9th Cir. 2003).
The AEDPA limits the circumstances under which a petitioner may
file a second or successive motion pursuant to § 2255:
A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate
court of appeals to contain—
1) newly discovered evidence that, if proven
and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
2) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.

22 28 U.S.C. § 2255(h).
In this case, because Petitioner challenges his underlying
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24 conviction and sentence and not errors in the administration of his
25 sentence, the petition appears to come within the scope of 28 U.S.C.
26 § 2255(a).
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B.

Actual Innocence

Petitioner argues that his remedy pursuant to § 2255 is
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1 inadequate because he is actually innocent of the commitment
2 offenses.
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Although authority in this circuit is limited, it is recognized

4 that the § 2255 remedy is inadequate and ineffective, and thus a
5 petition pursuant to § 2241 is available, when the petitioner 1)
6 claims to be factually innocent of the crime for which he has been
7 convicted, and 2) has never had an “unobstructed procedural shot” at
8 presenting the claim.
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1.

Stephens v. Herrera, 464 F.3d at 898.

Factual Innocence

A claim of actual innocence for purposes of the “escape hatch”

11 of § 2255 is assessed by the test stated in Bousley v. United
12 States, 523 U.S. 614, 623 (1998), which in turn requires that the
13 petitioner demonstrate that in light of all the evidence, it is more
14 likely than not that no reasonable juror would have convicted him.
15 Stephens, 464 F.3d at 898.
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Here, Petitioner’s claim is that he is innocent of a sentencing

17 enhancement because of the length of the sentence he received on a
18 conviction serving as a basis for the enhancement.
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In Marrero v. Ives, 682 F.3d 1190 (9th Cir. 2012), the court

20 affirmed the district court’s dismissal of a § 2241 petition for
21 lack of jurisdiction after the district court had construed the
22 petition as a 28 U.S.C. § 2255 motion to vacate sentence.

The

23 petitioner there had filed a § 2241 petition after a previous § 2255
24 motion had been denied.

The Court held that the district court’s

25 construction and dismissal were proper because the petitioner had
26 failed to make an adequate claim of actual innocence sufficient to
27 permit filing a § 2241 petition under the escape hatch of § 2255.
28 In that case, petitioner had argued that he was “actually innocent”
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1 of being a career offender because the prior offenses would no
2 longer qualify under amendments to the sentencing guidelines. The
3 court stated:
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Whatever the merits of Petitioner's argument that he would
not qualify as a career offender were he to be sentenced
under the post–2007 Guidelines, his claim is not one of
actual innocence. “In this circuit, a claim of actual
innocence for purposes of the escape hatch of § 2255 is
tested by the standard articulated by the Supreme Court in
Bousley v. United States, 523 U.S. 614[, 623], 118 S.Ct.
1604, 140 L.Ed.2d 828 (1998).” Stephens, 464 F.3d at 898.
“ ‘[A]ctual innocence’ means factual innocence, not mere
legal insufficiency.” Bousley, 523 U.S. at 623, 118 S.Ct.
1604. We have not yet resolved the question whether a
petitioner may ever be actually innocent of a noncapital
sentence for the purpose of qualifying for the escape
hatch. It is clear, however, that Petitioner's claim that
two of his prior offenses should no longer be considered
“related,” and that he was therefore incorrectly treated
as a career offender, is a purely legal claim that has
nothing to do with factual innocence. Accordingly, it is
not a cognizable claim of “actual innocence” for the
purposes of qualifying to bring a § 2241 petition under
the escape hatch.

17 Marrero v. Ives, 682 F.3d at 1193.

The court collected cases

18 reflecting a general agreement among the circuits that a petitioner
19 generally cannot assert a cognizable claim of actual innocence of a
20 noncapital sentencing enhancement.

(Id. at 1193-94.) Thus, the

21 Ninth Circuit explicitly held that claims in which a petitioner
22 alleges that he was improperly classified as a career criminal are
23 not claims of actual innocence.
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Here, Petitioner’s argument that he is actually or factually

25 innocent of the sentencing enhancement is in essence a “purely
26 legal” argument having “nothing to do with factual innocence.”
27 Accordingly, Petitioner has not established factual or actual
28 innocence.
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Opportunity to Raise His Claim

Here, Petitioner brought a previous § 2255 motion raising the

4 ineffective assistance of counsel, but the date and ruling thereon
5 are not stated.
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(Doc. 1, 14.)

There is no showing that there was any change in the law that

7 affected the basis of Petitioner’s claim.

Petitioner relies on

8 Alaimalo v. United States, 645 F.3d 1042 (9th Cir. 2011), in which
9 the court considered the claim of a petitioner whose conduct was
10 held by an intervening judicial decision not to be legally
11 sufficient to constitute the commitment offense (there, importation
12 of a controlled substance to the territory of Guam).

However, in

13 the present case, there is no analogous material change in the law
14 governing the commitment offense that intervened after Petitioner’s
15 conviction; rather, there was only a judicial decision regarding a
16 non-constitutional issue affecting a prior conviction used as a
17 sentencing enhancement.
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The Court notes that Petitioner could not bring a successive

19 § 2255 motion to raise a new judicial decision interpreting a
20 statute, as distinct from a Supreme Court case announcing a new rule
21 of constitutional law.

28 U.S.C. § 2255(h)(2); Lorentsen v. Hood,

22 223 F.3d 950, 953 (9th Cir. 2000).

It is unclear whether Petitioner

23 has sought to bring a successive motion.

However, even if

24 Petitioner attempted to obtain permission to file a second or
25 successive motion and failed, that would not necessarily render the
26 § 2255 remedy inadequate or ineffective.

Lorentsen v. Hood, 223

27 F.3d at 953 (citing Moore v. Reno, 185 F.3d 1054).
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The Court concludes that Petitioner has not shown that he did

2 not have an unobstructed procedural shot at presenting his
3 challenges to the sentencing court.
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In summary, Petitioner has not shown that his remedy by way of

5 § 2255 was inadequate or ineffective.

Thus, Petitioner may not

6 proceed with his challenge to his conviction and sentence in a
7 proceeding pursuant to § 2241.

The petition must be dismissed

8 because the Court lacks jurisdiction to proceed pursuant to § 2241.
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Accordingly, it will be recommended that the petition for writ

10 of habeas corpus be dismissed.
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III.

Certificate of Appealability

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Unless a circuit justice or judge issues a certificate of

13 appealability, an appeal may not be taken to the Court of Appeals
14 from the final order in a habeas proceeding in which the detention
15 complained of arises out of process issued by a state court.

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16 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
17 (2003).

A district court must issue or deny a certificate of

18 appealability when it enters a final order adverse to the applicant.
19 Rule 11(a) of the Rules Governing Section 2254 Cases.
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A certificate of appealability may issue only if the applicant

21 makes a substantial showing of the denial of a constitutional right.
22 ' 2253(c)(2).

Under this standard, a petitioner must show that

23 reasonable jurists could debate whether the petition should have
24 been resolved in a different manner or that the issues presented
25 were adequate to deserve encouragement to proceed further.

Miller-

26 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
27 473, 484 (2000)).

A certificate should issue if the Petitioner

28 shows that jurists of reason would find it debatable whether: (1)
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1 the petition states a valid claim of the denial of a constitutional
2 right, and (2) the district court was correct in any procedural
3 ruling.
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Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the

5 claims in the habeas petition, generally assesses their merits, and
6 determines whether the resolution was debatable among jurists of
7 reason or wrong.

Id.

An applicant must show more than an absence

8 of frivolity or the existence of mere good faith; however, the
9 applicant need not show that the appeal will succeed.

Miller-El v.

10 Cockrell, 537 U.S. at 338.
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Here, it does not appear that reasonable jurists could debate

12 whether the petition should have been resolved in a different
13 manner.

Petitioner has not made a substantial showing of the denial

14 of a constitutional right.
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Therefore, the Court should decline to issue a certificate of

16 appealability.
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IV.

Recommendations

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Accordingly, it is RECOMMENDED that:

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1) The petition for writ of habeas corpus be DISMISSED for lack

20 of subject matter jurisdiction; and
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2) The Court DECLINE to issue a certificate of appealability;

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3) The Clerk be DIRECTED to close the case.

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These findings and recommendations are submitted to the United

25 States District Court Judge assigned to the case, pursuant to the
26 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
27 Rules of Practice for the United States District Court, Eastern
28 District of California.

Within thirty (30) days after being served
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1 with a copy, any party may file written objections with the Court
2 and serve a copy on all parties.

Such a document should be

3 captioned AObjections to Magistrate Judge=s Findings and
4 Recommendations.@

Replies to the objections shall be served and

5 filed within fourteen (14) days (plus three (3) days if served by
6 mail) after service of the objections.

The Court will then review

7 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
8 The parties are advised that failure to file objections within the
9 specified time may waive the right to appeal the District Court=s
10 order.

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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12 IT IS SO ORDERED.
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Dated:

/s/ Barbara

August 25, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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