Sterling-Suarez v. Matevousian
Filing
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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, signed by Magistrate Judge Jennifer L. Thurston on 1/6/16. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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QUESTER STERLING-SUAREZ,
Petitioner,
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v.
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ANDRE MATEVOUSIAN,
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Respondent.
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Case No.: 1:15-cv-01883-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
In this action, Petitioner challenges his 2005 conviction for aiding and abetting a murder and
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the life sentence imposed as a result. (Doc. 1, pp. 1-2). 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(c), which, Petitioner maintains, has been significantly altered by the
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U.S. Supreme Court case of Rosamond v. United States, __U.S.__, 134 S.Ct. 1240, 188 L.Ed.2d 248
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(2014). Petitioner further contends that, based on Rosamond, he is “actually innocent” and that he is
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entitled to proceed via § 2241 even though he is challenging his conviction, not the execution of his
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sentence. (Doc. 1, pp. 26-28).
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Because the Court has determined that Petitioner’s challenge to his original sentence is not
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entitled to the “savings clause,” and therefore should have been brought in the trial court as a motion
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pursuant to 28 U.S.C. § 2255, the Court will RECOMMEND that the instant petition be
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DISMISSED.
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I.
DISCUSSION
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.
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conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
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Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United
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States v. Flores, 616 F.2d 840, 842 (5th Cir.1980).
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A prisoner may not collaterally attack a federal
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.
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Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 177 (5th Cir.
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1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925
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F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3rd Cir. 1991); United
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States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v. United States, 610 F.2d 672, 677
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(9th Cir. 1990).
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Petitioner alleges that Rosamond v. United States should result in the Court setting aside his
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conviction because he did not have prior knowledge that his accomplice had a weapon. Thus, he
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makes a direct challenge to his conviction rather than to the execution of his sentence. Indeed,
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Petitioner concedes as much in his petition.
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The proper vehicle for making such a challenge is a motion to vacate, set aside, or correct the
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sentence pursuant to 28 U.S.C. § 2255, not a habeas corpus petition. Nevertheless, a federal prisoner
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authorized to seek relief under § 2255 may seek relief under § 2241 if he can show that the remedy
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available under § 2255 is "inadequate or ineffective to test the validity of his detention." Hernandez v.
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Campbell, 204 F.3d 861, 864-5 (9th Cir.2000); United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997)
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(quoting § 2255). The Ninth Circuit has recognized that this is a very narrow exception. Id; Ivy v.
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Pontesso, 328 F.3d 1057 (9th Cir. 2003) (a petitioner must show actual innocence and that he never had
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the opportunity to raise it by motion to demonstrate that § 2255 is inadequate or ineffective); Holland v.
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Pontesso, 234 F.3d 1277 (9th Cir. 2000) (§ 2255 not inadequate or ineffective because Petitioner misses
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statute of limitations); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s denial of a prior § 2255 motion
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is insufficient to render § 2255 inadequate.); Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000)
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(same); Tripati, 843 F.2d at 1162-63 (9th Cir.1988) (a petitioner's fears of bias or unequal treatment do
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not render a § 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957);
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Hildebrandt v. Swope, 229 F.2d 582 (9th Cir.1956); see United States v. Valdez-Pacheco, 237 F.3d
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1077 (9th Cir. 2001) (procedural requirements of § 2255 may not be circumvented by invoking the All
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Writs Act, 28 U.S.C. § 1651). 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).
In Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003), the Ninth Circuit held that the remedy under
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a § 2255 motion would be “inadequate or ineffective” if a petitioner is actually innocent, but
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procedurally barred from filing a second or successive motion under § 2255. Ivy, 328 F.3d at 1060-
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1061. That is, relief pursuant to § 2241 is available when the petitioner’s claim satisfies the following
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two-pronged test: “(1) [the petitioner is] factually innocent of the crime for which he has been
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convicted and, (2) [the petitioner] has never had an ‘unobstructed procedural shot’ at presenting this
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claim.” Id. at 1060.
Petitioner contends that he has never had an unobstructed procedural shot at presenting his
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claim because Rosamond was decided after Petitioner had already filed his first § 2255 petition in the
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sentencing court.1 (Doc. 1, p. 5). Leaving aside that contention for the moment, it is clear that
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Petitioner has failed to meet the second prong, i.e., actual innocence.
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“To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is
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more likely than not that no reasonable juror would have convicted him.” Bousley v. United States,
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523 U.S. 614, 623 (1998)(quoting Schlup v. Delo, 513 U.S. 298, 327-328 (1995)); Stephens v. Herrera,
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While this is true, Rosamond was decided a full year before the Court ruled on his § 2255 petition. (Doc. 1 at 4) Thus,
Petitioner’s claim that [Rosamond] was unavailable during petitioner’s . . . first 2255” is incorrect. Rather, Petitioner
offers no explanation for his failure to alert the sentencing court during the proceedings on his § 2255 petition of the
Rosamond decision and how he believed it impacted his conviction.
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464 F.3d 895, 898 (9th cir. 2008). “[A]ctual innocence means factual innocence, not mere legal
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insufficiency,” and “in cases where the Government has forgone more serious charges in the course of
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plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” Bousley,
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523 U.S. at 623-624 (emphasis supplied). However, a petitioner’s obligation to demonstrate actual
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innocence is limited to crimes actually charged or consciously forgone by the Government in the course
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of plea bargaining. See, e.g., id. at 624 (rejecting government’s argument that defendant had to
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demonstrate actual innocence of both “using” and “carrying” a firearm where the indictment only
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charged using a firearm).
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Although the Supreme Court has provided little guidance regarding the nature of an “actual
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innocence” claim, the standards announced by the various circuit courts contain two basic features:
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(1) actual innocence, and (2) retroactivity. E.g., Reyes-Requena v. United States, 243 F.3d 893, 903
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(5th Cir. 2001); In re Jones, 226 F.3d 328 (4th Cir. 2000); In re Davenport, 147 F.3d 605 (7th Cir.
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1998); Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997); In re Hanserd, 123 F.3d 922 (6th Cir.
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1997); In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997).
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In Rosamond, the Supreme Court held that conviction of a charge of aiding and abetting an 18
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U.S.C. § 924(c) violation requires proof of advance knowledge that a co-defendant would use or carry
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a gun. Rosamond, 134 S.Ct. at 1249-50. Thus, Rosamond is not relevant to the issue of whether
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Petitioner is actually innocent of that charge, but rather to whether he is legally innocent of that
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charge. As mentioned, in this case, the Court need not determine whether Petitioner has had an
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unobstructed procedural shot or whether his claim, based on Rosamond, is one involving factual, or
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merely legal, innocence, because Rosamond is presently inapplicable to cases, such as the instant one,
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that are on collateral review.
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Instead, Rosamond was decided on direct review, and, accordingly, the Supreme Court had no
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occasion to address an actual innocence claim, but rather merely the underlying instructional error
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claim. Moreover, there is no indication in the decision by the Court that the rule declared therein
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regarding the mental state required to aid and abet a § 924(c) offense would apply retroactively on
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collateral appeal. Reyes-Requena, 243 F.3d at 903. For this reason alone, Petitioner is not entitled to
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avail himself of the “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.
ORDER
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For the foregoing reasons, the Clerk of the Court is HEREBY DIRECTED to assign a United
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 72-304 of the
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Local Rules of Practice for the United States District Court, Eastern District of California. Within 21
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days 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 days (plus three days if served by mail) after service of the Objections. The
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Court will then 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 appeal the
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Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
January 6, 2016
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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