Rashid v. Matevousian
Filing
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FINDINGS and RECOMMENDATIONS recommending that the Petition (Doc. 1 ) be DISMISSED for Lack of Jurisdiction and that the Court Decline to Issue a Certificate of Appealability signed by Magistrate Judge Sandra M. Snyder on 3/9/2016. Referred to Judge Drozd. Objections to F&R due within thirty (30) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MOHAMMAD S. RASHID,
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Petitioner,
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v.
CASE NO. 1:15-CV-1312-DAD-SMS (HC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF THE
PETITION FOR LACK OF JURISDICTION
ANDRE MATEVOUSIAN, Warden,
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Respondent.
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Petitioner is proceeding in pro se and in forma pauperis with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2241. He challenges the trial court’s designation of him as a
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“career offender” under the Armed Career Criminal Act (“ACCA” 18 U.S.C. § 924), which
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subjected him to a 262-month sentence rather than the 70-87 months he would have received
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absent this designation. Petitioner argues that the Supreme Court’s decision in Johnson v. United
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States, 135 S.Ct. 2551, 192 L. Ed. 2d 569 (2015), which ruled that ACCA’s “residual clause” was
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void for vagueness, rendered his sentence unconstitutional for a violation of due process.
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I.
SCREENING STANDARD
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The Court is required to screen pleadings filed by prisoners, and to dismiss them to the
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extent they fail to state a claim. 28 U.S.C. § 1915A(a). Rule 4 of the Rules Governing Section
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2254 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and
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any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of the
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Rules Governing Section 2254 Cases.
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II.
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SUMMARY OF ARGUMENT
Petitioner alleges in his petition that he was convicted of 18 U.S.C. § 1951 (Interference
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with commerce by threats or violence). He was also subject to an additional penalty under 18
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U.S.C. § 924, governing use or carrying of a firearm during and in relation to, or in furtherance of,
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any crime of violence or drug trafficking crime. Petitioner was designated as a career offender
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based on three prior burglary convictions in Missouri, which were designated as crimes of
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violence under ACCA’s residual clause. His federal conviction was also designated a crime of
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violence under the residual clause. Petitioner argues that he would have been sentenced under the
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U.S. Sentencing Guidelines to 70-87 months imprisonment without being classified and sentenced
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as a career offender. However, he was classified as a career offender and sentenced to 262 months.
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In June 2015, the Supreme Court ruled that ACCA’s residual clause was unconstitutionally
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vague in violation of due process. Johnson v. United States, 135 S.Ct. 2551, 2555-56, 192 L. Ed.
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2d 569 (2015). Petitioner argues that, based on this ruling, the instant offense and his prior
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burglary convictions were not crimes of violence. Petitioner argues that Johnson is retroactive.
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III.
DISCUSSION
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28 U.S.C. § 2255 and 28 U.S.C. § 2241
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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 sentence
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under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988). In such cases,
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only the sentencing court has jurisdiction. Id. at 1163. However, under the savings clause of §
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2255, or the “escape hatch,” a federal prisoner seeking to challenge the legality of confinement
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may file a § 2241 habeas petition “if, and only if, the remedy under § 2255 is ‘inadequate or
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ineffective to test the legality of his detention.’” Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir.
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2012)(quoting Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006)). The Ninth Circuit has
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recognized that this is a very narrow exception. E.g. Ivy v. Pontesso, 328 F.3d 1057 (9th Cir.
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2003) (a petitioner must show actual innocence and that he never had the opportunity to raise it by
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motion to demonstrate that § 2255 is inadequate or ineffective); Holland v. Pontesso, 234 F.3d
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1277 (9th Cir. 2000) (§ 2255 not inadequate or ineffective because Petitioner misses statute of
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limitations); Aronson v. May, 85 S.Ct. 3, 5, 13 L. Ed. 2d 6 (1964) (a court’s denial of a prior §
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2255 motion is insufficient to render § 2255 inadequate.).
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“[A] prisoner may file a § 2241 petition under the escape hatch when the prisoner
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(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at
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presenting that claim.” Marrero, 682 F.3d at 1192 (internal quotation marks omitted). A claim of
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actual innocence for purposes of the escape hatch means factual innocence, not mere legal
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insufficiency. Id.at 1193 (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). “[T]he
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purely legal argument that a petitioner was wrongly classified as a career offender under the
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Sentencing Guidelines is not cognizable as a claim of actual innocence under the escape hatch.”
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Id. Thus, Marrerro reiterates the requirement of a claim of factual innocence in order to proceed
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under section 2255’s escape hatch, including when the petitioner challenges a sentencing defect.
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Actual Innocence
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Here, Petitioner’s allegations are a direct challenge to the sentence imposed, not to the
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administration of that sentence. Thus, the proper vehicle for challenging such a mistake is a
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motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, not 28 U.S.C. §
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2241, unless Petitioner is entitled to proceed under § 2255’s savings clause. However, Petitioner
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has not satisfied the actual innocence requirement.
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Petitioner has not set forth specific facts not previously presented that make a convincing
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case that Petitioner did not commit the offenses. He does not argue that he did not commit the
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crimes for which he was convicted. His argument is purely legal –that he was wrongly classified
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as a career offender- and has nothing to do with factual innocence. Thus, he has not asserted a
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cognizable claim of actual innocence, and has not satisfied the savings clause. He is not permitted
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to proceed under § 2241.
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Jurisdiction
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If Petitioner wishes to pursue his claims in federal court, he must do so by way of a motion
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to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 in the sentencing court.
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This Court does not have jurisdiction to hear the petition. Therefore, the petition should be
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dismissed.
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IV.
APPEALABILITY
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For the reasons set forth above, Petitioner has not shown “that jurists of reason would find
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it debatable whether the petition states a valid claim of the denial of a constitutional right [or] that
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jurists of reason would find it debatable whether the district court was correct in its procedural
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ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Hence, the Court should decline to issue a
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certificate of appealability.
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V.
RECOMMENDATION
For the foregoing reasons, it is hereby RECOMMENDED that the petition be DISMISSED
for lack of jurisdiction and that the Court decline to issue a certificate of appealability.
These findings and recommendations are submitted to the United States District Court
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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72-
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304 of the Local Rules of Practice for the United States District Court, Eastern District of
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California. Within thirty (30) days after being served with a copy, Petitioner may file written
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objections with the Court, serving a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” The Court will then review
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the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that
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failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
March 9, 2016
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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