Orta v. Copenhaver

Filing 4

FINDINGS and RECOMMENDATIONS to Dismiss 1 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, signed by Magistrate Judge Jennifer L. Thurston on 12/5/2014. The case has been assigned to District Judge Anthony W. Ishii and Magistrate Judge Jennifer L. Thurston. The new case number is 1:14-cv-01898-AWI-JLT (HC). (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOIS JOCHINTO ORTA, 12 13 14 15 Petitioner, v. PAUL COPENHAVER, Warden, Respondent. 16 17 18 19 20 21 22 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-01898-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 Petitioner filed the instant federal petition on December 1, 2014, challenging Petitioner’s 1998 23 drug convictions in the United States District Court for the Eastern District of Kentucky. (Doc. 1). 24 Specifically, Petitioner challenges the jury instruction given at trial regarding the mental state for his 25 convictions for “aiding and abetting,” which, Petitioner maintains, has been significantly altered by the 26 recent U.S. Supreme Court case of Rosamond v. United States, __U.S.__, 134 S.Ct. 1240, 188 L.Ed.2d 27 248 (2014). Petitioner further contends that, because of Rosamond, he is “actually innocent” and that 28 he is entitled to proceed via § 2241 even though he is clearly challenging his conviction, not the 1 1 2 execution of his sentence. (Doc. 1, p. 7). Because the Court has determined that Petitioner’s claim challenges his original sentence, and 3 therefore should have been brought in the trial court as a motion pursuant to 28 U.S.C. § 2255, and 4 because Petitioner does not fall within the “savings clause” of § 2255, the Court will recommend that 5 the instant petition be dismissed for lack of habeas jurisdiction. DISCUSSION 6 7 A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. 8 Campbell, 204 F.3d 861, 865 (9th Cir. 2000). A federal prisoner who wishes to challenge the validity or 9 constitutionality of his conviction or sentence must do so by way of a motion to vacate, set aside, or 10 correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); 11 Thompson v. Smith, 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997); 12 Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing court 13 has jurisdiction. Tripati, 843 F.2d at 1163. 14 or sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. 15 United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. 16 Flores, 616 F.2d 840, 842 (5th Cir.1980). 17 A prisoner may not collaterally attack a federal conviction In contrast, a federal prisoner challenging the manner, location, or conditions of that sentence's 18 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Brown v. United 19 States, 610 F.2d 672, 677 (9th Cir. 1990); Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); 20 United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 21 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 22 921 F.2d 476, 478-79 (3rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987). 23 Petitioner’s allegation that the March 2014 decision by the United States Supreme Court in 24 Rosamond v. United States should result in the setting aside of his “aiding and abetting” convictions 25 because the jury was not instructed according to the reasoning of Rosamond is clearly a direct 26 challenge to Petitioner’s conviction, not to the execution of his sentence. Indeed, Petitioner concedes 27 as much in his petition. 28 However, the proper vehicle for challenging such a mistake is a motion to vacate, set aside, or 2 1 correct the sentence pursuant to 28 U.S.C. § 2255, not a habeas corpus petition. Nevertheless, a federal 2 prisoner authorized to seek relief under § 2255 may seek relief under § 2241 if he can show that the 3 remedy available under § 2255 is "inadequate or ineffective to test the validity of his detention." 4 Hernandez v. Campbell, 204 F.3d 861, 864-5 (9th Cir.2000); United States v. Pirro, 104 F.3d 297, 299 5 (9th Cir.1997) (quoting § 2255). The Ninth Circuit recognizes this is a very narrow exception. Id; Ivy 6 v. Pontesso, 328 F.3d 1057 (9th Cir. 2003) (a petitioner must show actual innocence and that he never 7 had the opportunity to raise it by motion to demonstrate that § 2255 is inadequate or ineffective); 8 Holland v. Pontesso, 234 F.3d 1277 (9th Cir. 2000) (§ 2255 not inadequate or ineffective because 9 Petitioner misses statute of limitations); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s denial of a 10 prior § 2255 motion is insufficient to render § 2255 inadequate.); Lorentsen v. Hood, 223 F.3d 950, 953 11 (9th Cir. 2000) (same); Tripati, 843 F.2d at 1162-63 (9th Cir.1988) (a petitioner's fears of bias or unequal 12 treatment do not render a § 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th 13 Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 (9th Cir.1956); see United States v. Valdez-Pacheco, 14 237 F.3d 1077 (9th Cir. 2001) (procedural requirements of § 2255 may not be circumvented by invoking 15 the All Writs Act, 28 U.S.C. § 1651). The burden is on the petitioner to show that the remedy is 16 inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 17 In Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003), the Ninth Circuit held that the remedy under 18 a § 2255 motion would be “inadequate or ineffective” if a petitioner is actually innocent, but 19 procedurally barred from filing a second or successive motion under § 2255. Ivy, 328 F.3d at 1060- 20 1061. That is, relief pursuant to § 2241 is available when the petitioner’s claim satisfies the following 21 two-pronged test: “(1) [the petitioner is] factually innocent of the crime for which he has been 22 convicted and, (2) [the petitioner] has never had an ‘unobstructed procedural shot’ at presenting this 23 claim.” Id. at 1060. 24 The second requirement to access the “savings clause” is actual innocence. “To establish actual 25 innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that 26 no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623, 118 27 S.Ct. 1604 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851 (1995)); Stephens v. 28 Herrera, 464 F.3d 895, 898 (9th cir. 2008). “[A]ctual innocence means factual innocence, not mere 3 1 legal insufficiency,” and “in cases where the Government has forgone more serious charges in the 2 course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” 3 Bousley, 523 U.S. at 623-624. However, a petitioner’s obligation to demonstrate actual innocence is 4 limited to crimes actually charged or consciously forgone by the Government in the course of plea 5 bargaining. See, e.g., id. at 624 (rejecting government’s argument that defendant had to demonstrate 6 actual innocence of both “using” and “carrying” a firearm where the indictment only charged using a 7 firearm). 8 Although the United States Supreme Court has provided little guidance regarding the nature of 9 an “actual innocence” claim, the standards announced by the various circuit courts contain two basic 10 features: actual innocence and retroactivity. E.g., Reyes-Requena v. United States, 243 F.3d 893, 903 11 (5th Cir. 2001); In re Jones, 226 F.3d 328 (4th Cir. 2000); In re Davenport, 147 F.3d 605 (7th Cir. 1998); 12 Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997); In re Hanserd, 123 F.3d 922 (6th Cir. 1997); 13 In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). 14 In Rosamond, the Supreme Court held that conviction on a charge of aiding and abetting a § 15 924(c) violation requires proof of advance knowledge that a co-defendant would use or carry a gun. 16 Rosamond, 134 S.Ct. at 1249-50. Thus, Rosamond is not relevant to the issue of whether Petitioner is 17 actually innocent of that charge, but rather to whether he is legally innocent of that charge. However, 18 in this case, the Court need not determine whether Petitioner has had an unobstructed procedural shot 19 or whether his claim, based on Rosamond, is one involving factual innocence because Rosamond is 20 presently inapplicable to cases, such as the instant one, that are on collateral review. 21 Instead, Rosamond was decided on direct review, and, accordingly, the Supreme Court had no 22 occasion to address an actual innocence claim, but rather merely the underlying instructional error 23 claim. Moreover, there is no indication in the decision by the High Court that the rule declared therein 24 regarding the mental state required to aid and abet a federal offense would apply retroactively on 25 collateral appeal. Reyes-Requena, 243 F.3d at 903. For this reason alone, Petitioner is not entitled to 26 avail himself of the “savings clause.” 27 28 Section 2255 motions must be heard in the sentencing court. 28 U.S.C. § 2255(a); Hernandez, 204 F.3d at 864-865. Because this Court is only the custodial court and construes the petition as a § 4 1 2255 motion, this Court lacks jurisdiction over the petition. Hernandez, 204 F.3d at 864-865. In sum, 2 should Petitioner wish to pursue his claims in federal court, he must do so by way of a motion to 3 vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.1 ORDER 4 For the foregoing reasons, the Clerk of the Court is HEREBY DIRECTED to assign a United 5 6 States District Court judge to this case. 7 RECOMMENDATION 8 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 9 DISMISSED. This Findings and Recommendation is submitted to the United States District Court Judge 10 11 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 12 Local Rules of Practice for the United States District Court, Eastern District of California. Within 21 13 days after being served with a copy of this Findings and Recommendation, any party may file written 14 objections with the Court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be 16 served and filed within ten court days (plus three days if served by mail) after service of the Objections. 17 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The 18 parties are advised that failure to file objections within the specified time may waive the right to appeal 19 the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 IT IS SO ORDERED. 22 Dated: December 5, 2014 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 1 28 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 Eastern District of Kentucky. Thus, that court is the proper venue for filing a petition for writ of habeas corpus pursuant to § 2255. 5

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