Fields v. Copenhaver

Filing 5

FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus 1 ; ORDER REQUIRING That Objections Be Filed Within Twenty-One Days; ORDER DIRECTING Clerk of Court to Assign District Judge to Case, signed by Magistrate Judge Jennifer L. Thurston on 9/30/14. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS FIELDS,
Petitioner,
v.
PAUL COPENHAVER,
Respondent.

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Case No.: 1:14-cv-01397-JLT
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION FOR WRIT OF HABEAS
CORPUS
ORDER REQUIRING THAT OBJECTIONS BE
FILED WITHIN TWENTY-ONE DAYS
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE TO CASE

Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241.
PROCEDURAL HISTORY

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Petitioner filed the instant federal petition on September 8, 2014, challenging Petitioner’s 1999

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conviction in the United States District Court for the District of Columbia, and subsequent sentence to

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two life sentences plus 105 years. (Doc. 1, p. 11). Specifically, Petitioner challenges the jury

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instruction given at trial regarding the mental state for a conviction for “aiding and abetting” the use of

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a firearm under 18 U.S.C. § 924(a), which, Petitioner maintains, has been significantly altered by the

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recent U.S. Supreme Court case of Rosamond v. United States, __U.S.__, 134 S.Ct. 1240, 188 L.Ed.2d

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248 (2014). Petitioner further contends that, because of Rosamond, he is “actually innocent” and that

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he is entitled to proceed via § 2241 even though he is challenging his conviction, not the execution of
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his sentence. (Doc. 1, pp. 15-18).
Because the Court has determined that Petitioner’s claim challenges his original sentence, and

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therefore should have been brought in the trial court as a motion pursuant to 28 U.S.C. § 2255, the

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Court will recommend that the instant petition be dismissed.
DISCUSSION

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A federal court may not entertain an action over which it has no jurisdiction. Hernandez v.

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Campbell, 204 F.3d 861, 865 (9th Cir. 2000). A federal prisoner who wishes to challenge the validity

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

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correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988);

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

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

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

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or 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).
In contrast, a federal 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. Capaldi v. Pontesso,

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135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994);

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Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 F.2d 889,

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

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Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v. United States, 610 F.2d 672, 677 (9th Cir.

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1990).

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Petitioner’s allegation that the March 2014 decision by the United States Supreme Court in

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Rosamond v. United States should result in the setting aside of his conviction because the jury

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instructions in his trial did not comply with the reasoning of Rosamond is clearly a direct challenge to

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Petitioner’s conviction, not to the execution of his sentence. Indeed, Petitioner concedes as much in his

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petition.

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However, the proper vehicle for challenging such a mistake is a motion to vacate, set aside, or
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correct the sentence pursuant to 28 U.S.C. § 2255, not a habeas corpus petition. Nevertheless, a federal

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prisoner authorized to seek relief under § 2255 may seek relief under § 2241 if he can show that the

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

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Hernandez v. Campbell, 204 F.3d 861, 864-5 (9th Cir.2000); United States v. Pirro, 104 F.3d 297, 299

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(9th Cir.1997) (quoting § 2255). The Ninth Circuit has recognized that this is a very narrow exception.

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Id; Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003) (a petitioner must show actual innocence and that he

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never had the opportunity to raise it by motion to demonstrate that § 2255 is inadequate or ineffective);

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Holland v. Pontesso, 234 F.3d 1277 (9th Cir. 2000) (§ 2255 not inadequate or ineffective because

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Petitioner misses statute of limitations); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s denial of a

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prior § 2255 motion is insufficient to render § 2255 inadequate.); Lorentsen v. Hood, 223 F.3d 950, 953

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(9th Cir. 2000) (same); Tripati, 843 F.2d at 1162-63 (9th Cir.1988) (a petitioner's fears of bias or unequal

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treatment do not render a § 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th

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Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 (9th Cir.1956); see United States v. Valdez-Pacheco,

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237 F.3d 1077 (9th Cir. 2001) (procedural requirements of § 2255 may not be circumvented by invoking

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the All Writs Act, 28 U.S.C. § 1651). The burden is on the petitioner to show that the remedy is

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

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In Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003), the Ninth Circuit held the remedy under a

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§2255 motion would be “inadequate or ineffective” if a petitioner is actually innocent, but procedurally

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barred from filing a second or successive motion under § 2255. Ivy, 328 F.3d at 1060-1061. That is,

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relief pursuant to § 2241 is available when the petitioner’s claim satisfies the following two-pronged

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test: “(1) [the petitioner is] factually innocent of the crime for which he has been convicted and, (2) [the

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petitioner] has never had an ‘unobstructed procedural shot’ at presenting this claim.” Id. at 1060.

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The second requirement to access the “savings clause” is actual innocence. “To 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 v. United States, 523 U.S. 614, 623, 118

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S.Ct. 1604 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851 (1995)); Stephens v.

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Herrera, 464 F.3d 895, 898 (9th cir. 2008). “[A]ctual innocence means factual innocence, not mere

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legal insufficiency,” and “in cases where the Government has forgone more serious charges in the
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course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.”

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Bousley, 523 U.S. at 623-624. However, a petitioner’s obligation to demonstrate actual innocence is

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limited to crimes actually charged or consciously forgone by the Government in the course of plea

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bargaining. See, e.g., id. at 624 (rejecting government’s argument that defendant had to demonstrate

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actual innocence of both “using” and “carrying” a firearm where the indictment only charged using a

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firearm).

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Although the United States Supreme Court has not provided much guidance regarding the

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nature of an “actual innocence” claim, the standards announced by the various circuit courts contain

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two basic features: actual innocence and retroactivity. E.g., Reyes-Requena v. United States, 243 F.3d

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893, 903 (5th Cir. 2001); In re Jones, 226 F.3d 328 (4th Cir. 2000); In re Davenport, 147 F.3d 605 (7th

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Cir. 1998); Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997); In re Hanserd, 123 F.3d 922 (6th

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Cir. 1997); In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997).

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In Rosamond, the Supreme Court held conviction on a charge of aiding and abetting a § 924(c)

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violation requires proof of advance knowledge that a co-defendant would use or carry a gun.

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Rosamond, 134 S.Ct. at 1249-50. Thus, Rosamond is not relevant to the issue of whether Petitioner is

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actually innocent of that charge, but rather to whether he is legally innocent of that charge. However,

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in this case, the Court need not determine whether Petitioner has had an unobstructed procedural shot

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or whether his claim, based on Rosamond, is one involving factual, or merely legal, innocence because

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Rosamond is presently inapplicable to cases, such as the instant one, that are on collateral review.

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Instead, Rosamond was decided on direct review so the Supreme Court had no occasion to

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address an actual innocence claim and, instead, considered the underlying instructional error claim.

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Moreover, there is no indication in the decision by the Court that the rule declared therein regarding the

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mental state required to aid and abet a § 924(c) offense would apply retroactively on collateral appeal.

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Reyes-Requena, 243 F.3d at 903. For this reason alone, Petitioner is not entitled to avail himself of the

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“savings clause.”

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Section 2255 motions must be heard in the sentencing court. 28 U.S.C. § 2255(a); Hernandez,

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204 F.3d at 864-865. Because this Court is only the custodial court and construes the petition as a §

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2255 motion, this Court lacks jurisdiction over the petition. Hernandez, 204 F.3d at 864-865. In sum,
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should Petitioner wish to pursue his claims in federal court, he must do so by way of a motion to

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vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.1
ORDER

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For the foregoing reasons, the Clerk of the Court is HEREBY DIRECTED to assign a United

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States District Court judge to this case.

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RECOMMENDATION

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Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be

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DISMISSED.
This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within 21 days

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after being served with a copy of this Findings and Recommendation, any party may file written

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objections with the Court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be

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served and filed within 10 court days after service of the Objections. The Court will then review the

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Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to

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file objections within the specified time may waive the right to appeal the Order of the District Court.

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

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IT IS SO ORDERED.

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Dated:

September 30, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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A petition for writ of habeas corpus pursuant to § 2255 must be filed in the court where petitioner was originally
sentenced. In this case, Petitioner challenges a sentence adjudicated in the United States District Court for the District of
Columbia. Thus, that court is the proper venue for filing a petition for writ of habeas corpus pursuant to § 2255.

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