Billingsley v. Zuniga

Filing 4

FINDINGS and RECOMMENDATIONS Regarding 1 Petition for Writ of Habeas Corpus, ORDER Directing Clerk of Court to Assign District Court Judge to The Present Matter, signed by Magistrate Judge Michael J. Seng on 03/03/15. Referred to Judge O'Neill. Thirty Day Deadline. (Gonzalez, R)

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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. 1:15-cv-00279 MJS (HC)
LAVOYCE R. BILLINGSLEY,

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

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v.

(Doc. 1)

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ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE TO
THE PRESENT MATTER

ZUNIGA, Warden,
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 February 23, 2015. He

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is currently incarcerated at Federal Correctional Institution Mendota. Petitioner was

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convicted in the Northern District of Illinois of conspiracy to possess with the intent to

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distribute less than 500 grams of cocaine, possession of a firearm in furtherance of a

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drug trafficking crime, and possession of a firearm by a felon. See United States v.

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Billingsley, 2010 U.S. Dist. LEXIS 2618 (N.D. Ill. Jan. 12, 2010). Petitioner was

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sentenced on January 20, 2010 to 160 months imprisonment. (See Pet. at 2.) Presently,

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Petitioner asserts that his due process rights under the Fifth Amendment were violated.

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(See generally Pet, ECF No. 1.)
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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 his conviction, Petitioner filed a motion for acquittal or alternatively, a

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new trial. United States v. Billingsley, 2010 U.S. Dist. LEXIS 2618 (N.D. Ill. Jan. 12,

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2010). In the motion, Petitioner argued that there was insufficient evidence, and that

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several of the evidentiary rulings during trial were prejudicial. The motion was denied in a

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reasoned decision on July 12, 2010. (Id.) Petitioner next filed a motion to vacate, set

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aside or correct his sentence under 28 U.S.C. § 2255 on May 22, 2012. United States v.

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Billingsley, 2012 U.S. Dist. LEXIS 182313 (N.D. Ill. Dec. 27, 2012). In the motion, he

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alleged eight separate grounds based on alleged ineffectiveness of counsel. (Id.) The

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court of conviction denied the motion on December 27, 2012. (Id.)

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Petitioner states that at the time of filing his § 2255 petition, the case law was not

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in his favor, and therefore § 2255 was an insufficient basis for presenting his claims. The

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fact that Petitioner's § 2255 motion was denied because the law did not support his

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contentions is not a sufficient basis to show that he lacked an unobstructed opportunity

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to present his claims. Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003). Furthermore,

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even if Petitioner presents claims of innocence, which it does not appear that he has

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done in this present petition, such claims can be raised by an initial § 2255 motion. Id.

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Petitioner has not attempted to present the claims he now raises, and has not provided

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sufficient reason as to why he could not have presented the claims earlier.

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To the extent Petitioner argues that his present claims support his innocence, the

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claims are not supported by credible evidence. Petitioner asserts that there was

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improper governmental conduct involving the use of a false stash house and confidential

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informants. (See Pet. at 13-14.) Petitioner's claims are not supported by any tangible or

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concrete evidence supporting his innocence. Instead they are general allegations of

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government misconduct provided without any specific details regarding potential

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exculpatory evidence.

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In Bousley v. United States, 523 U.S. 614 (1998), the Supreme Court explained

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that, "[t]o establish actual innocence, petitioner must demonstrate that, in light of all the

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evidence, it is more likely than not that no reasonable juror would have convicted him."

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Id. at 623 (internal quotation marks omitted). See also Ivy v. Pontesso, 328 F.3d at 1060.

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Petitioner bears the burden of proof on this issue by a preponderance of the evidence,

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and he must show not just that the evidence against him was weak, but that it was so

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weak that "no reasonable juror" would have convicted him. Lorentsen v. Hood, 223 F.3d

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950, 954 (9th Cir. 2000). Petitioner has not met this standard.

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Based on the foregoing, the Court finds that Petitioner has not demonstrated

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Section 2255 constitutes an "inadequate or ineffective" remedy for raising his claims.

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Accordingly, Section 2241 is not the proper avenue for raising Petitioner's claims, and

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the petition should be dismissed for lack of jurisdiction.

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III.

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

of habeas corpus be DISMISSED.
It is further ORDERED that the Clerk of Court to assign a District Court Judge to
the present matter.

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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). The parties

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are 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. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014).

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IT IS SO ORDERED.
Dated:

March 3, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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