Griffin v. Matevousian

Filing 10

FINDINGS and RECOMMENDATION to Transfer the Petition for Writ of Habeas Corpus to the United States District Court for the Northern District of Florida, signed by Magistrate Judge Erica P. Grosjean on 5/17/16: Thirty-Day Deadline. (Hellings, J)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

ERIC LONDREY GRIFFIN,
Petitioner,

11
12
13
14

Case No. 1:16-cv-00277-LJO-EPG-HC
FINDINGS AND RECOMMENDATION TO
TRANSFER THE PETITION FOR WRIT OF
HABEAS CORPUS TO THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA

v.
ANDRE MATEVOUSIAN,
Respondent.

15
16

Petitioner Eric Londrey Griffin is a federal prisoner proceeding pro se with a petition for

17 writ of habeas corpus pursuant to 28 U.S.C. § 2241. In the instant petition, Petitioner challenges
18 the sentence imposed by the United States District Court for the Northern District of Florida in
19 light of Johnson v. United States, 135 S. Ct. 2552 (2015). As this Court does not have
20 jurisdiction to entertain the instant petition pursuant to the savings clause of 28 U.S.C. § 2255(e),
21 the undersigned recommends transferring the petition to the Northern District of Florida.
22

I.

23

BACKGROUND

24

Petitioner is currently incarcerated at the United States Penitentiary in Atwater,

25 California, serving a sentence imposed by the United States District Court for the Northern
26 District of Florida. On February 29, 2016, Petitioner filed the instant petition for writ of habeas
27 corpus. (ECF No. 1). On March 14, 2016, the Court ordered Petitioner to show cause why the
28 petition should not be dismissed for lack of jurisdiction. (ECF No. 7). On March 14, 2016, the

1

1 order to show cause was served on Petitioner and contained notice that a response should be filed
2 within thirty days of the date of service of the order. Over thirty days have passed and Petitioner
3 has not responded to the Court‟s order to show cause.
4

II.

5

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

6

7 v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam). A federal prisoner who wishes to
8 challenge the validity or constitutionality of his federal conviction or sentence must do so by
9 moving the court that imposed the sentence to vacate, set aside, or correct the sentence under 28
10 U.S.C. § 2255. Alaimalo v. United States, 645 F.3d 1042, 1046 (9th Cir. 2011). “The general
11 rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner
12 may test the legality of his detention, and that restrictions on the availability of a § 2255 motion
13 cannot be avoided through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464 F.3d
14 895, 897 (9th Cir. 2006) (citations omitted).
Despite Petitioner‟s assertion that he is challenging a “fundamental defect in the

15

16 execution of the detention,” the instant petition challenges the sentence imposed by the United
17 States District Court for the Northern District of Florida in light of the Supreme Court‟s recent
18 decision in Johnson v. United States, 135 S. Ct. 2552 (2015). (ECF No. 1 at 6, 13).1 Further, the
19 relief Petitioner seeks is for the Court to “vacate current federal sentence and conduct de novo
20 resentencing in which [Petitioner] would not be deemed an armed career criminal.” (Id. at 18).
21 This is an attack on the validity of Petitioner‟s federal sentence. Therefore, the appropriate
22 procedure would be to file a § 2255 motion in the court that imposed the sentence rather than a
23 § 2241 habeas petition in this Court.
Nevertheless, a “savings clause” or “escape hatch” exists in § 2255(e) by which a federal

24

25 prisoner may seek relief under § 2241 if he can demonstrate the remedy available under § 2255
26 to be “inadequate or ineffective to test the validity of his detention.” Alaimalo, 645 F.3d at 1047
27 (internal quotation marks omitted) (quoting 28 U.S.C. § 2255); Harrison v. Ollison, 519 F.3d
28

1

Page numbers refer to the ECF page numbers stamped at the top of the page.

2

1 952, 956 (9th Cir. 2008); Hernandez, 204 F.3d at 864–65. The Ninth Circuit has recognized that
2 it is a very narrow exception. See Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). The
3 remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a
4 prior § 2255 motion was denied, or because a remedy under § 2255 is procedurally barred. Id.
5 The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v.
6 United States, 315 F.2d 76, 83 (9th Cir. 1963).
7

A petitioner may proceed under § 2241 pursuant to the savings clause when the petitioner

8 “(1) makes a claim of actual innocence, and (2) has not had an „unobstructed procedural shot‟ at
9 presenting that claim.” Stephens, 464 F.3d at 898 (citing Ivy, 328 F.3d at 1060). With respect to
10 the second requirement, “it is not enough that the petitioner is presently barred from raising his
11 claim of innocence by motion under § 2255. He must never have had the opportunity to raise it
12 by motion.” Ivy, 328 F.3d at 1060. Petitioner arguably satisfies the second requirement.
13 Petitioner‟s conviction became final in 2001, his previous § 2255 motion was filed in 2014 and
14 dismissed, and Petitioner‟s claim did not become available until June 26, 2015, when the
15 Supreme Court decided Johnson.
16

With respect to the first requirement, in the Ninth Circuit a claim of actual innocence for

17 purposes of the § 2255 savings clause is tested by the standard articulated by the Supreme Court
18 in Bousley v. United States, 523 U.S. 614 (1998). Stephens, 464 F.3d at 898. In Bousley, the
19 Supreme Court explained that “[t]o establish actual innocence, petitioner must demonstrate that,
20 in light of all the evidence, it is more likely than not that no reasonable juror would have
21 convicted him.” 523 U.S. at 623 (internal quotation marks and citation omitted). Furthermore,
22 “actual innocence means factual innocence, not mere legal insufficiency.” Id.
23

The Ninth Circuit has “not yet resolved the question whether a petitioner may ever be

24 actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch.”
25 Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012). In Marrero, the Ninth Circuit held that “the
26 purely legal argument that a petitioner was wrongly classified as a career offender under the
27 Sentencing Guidelines is not cognizable as a claim of actual innocence under the escape hatch.”
28 Id. at 1195. The Marrero court also discussed, but did not endorse, the following exceptions

3

1 recognized in other circuits to the general rule that a petitioner generally cannot assert a
2 cognizable claim of actual innocence of a noncapital sentencing enhancement:
3
4
5
6
7

First, some courts have held that a petitioner may be actually
innocent of a sentencing enhancement if he was factually innocent
of the crime that served as the predicate conviction for the
enhancement. Second, some courts have suggested that a petitioner
may qualify for the escape hatch if he received a sentence for
which he was statutorily ineligible. And third, some courts have
left open the possibility that a petitioner might be actually innocent
of a sentencing enhancement if the sentence resulted from a
constitutional violation.

8 Marrero, 682 F.3d at 1194–95 (citations omitted).
9

Regardless, even if a petitioner may assert a cognizable claim of actual innocence of a

10 noncapital sentencing enhancement, Petitioner has failed to do so here. Federal law forbids
11 certain individuals to ship, transport, possess, or receive firearms or ammunition and punishes a
12 violation of this ban by up to ten years‟ imprisonment. 18 U.S.C. §§ 922(g), 924(a). However,
13 the Armed Career Criminal Act increases the term of imprisonment to a minimum of fifteen
14 years and a maximum of life when the defendant has three or more earlier convictions for a
15 “serious drug offense” or a “violent felony” or both. 18 U.S.C. § 924(e)(1). A “violent felony” is
16 defined to include, inter alia, “any crime punishable by imprisonment for a term exceeding one
17 year . . . that . . . otherwise involves conduct that presents a serious potential risk of physical
18 injury to another.” 18 U.S.C. § 924(e)(2)(B). This is known as the Act‟s residual clause. Johnson,
19 135 S. Ct. at 2556. In Johnson, the Supreme Court held “that imposing an increased sentence
20 under the residual clause of the Armed Career Criminal Act violates the Constitution‟s guarantee
21 of due process . . . [but] does not call into question application of the Act to the four enumerated
22 offenses, or the remainder of the Act‟s definition of a violent felony.” Id. at 2563. Petitioner
23 contends that after Johnson he does not have three prior convictions to sustain an enhanced
24 sentence under § 924(e). (ECF No. 1 at 13). Johnson held only the residual clause to be
25 unconstitutionally vague. Petitioner does not state whether the three previous convictions used to
26 enhance his sentence were for serious drug offenses or violent felonies, or whether the previous
27 convictions qualified as violent felonies under the residual clause. Thus, Petitioner has failed to
28 establish a claim of actual innocence.

4

1

Based on the foregoing, the Court finds that Petitioner has failed to establish a cognizable

2 claim of actual innocence for purposes of qualifying to bring a § 2241 habeas petition under the
3 savings clause of § 2255(e). Therefore, this Court lacks jurisdiction over the petition.
4

III.

5

RECOMMENDATION

6

Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas

7 corpus be TRANSFERRED to the United States District Court for the Northern District of
8 Florida.
9

This Findings and Recommendation is submitted to the assigned United States District

10 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
11 Rules of Practice for the United States District Court, Eastern District of California. Within
12 THIRTY (30) days after service of the Findings and Recommendation, any party may file
13 written objections with the court and serve a copy on all parties. Such a document should be
14 captioned “Objections to Magistrate Judge‟s Findings and Recommendation.” Replies to the
15 objections shall be served and filed within fourteen (14) days after service of the objections. The
16 assigned United States District Court Judge will then review the Magistrate Judge‟s ruling
17 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within
18 the specified time may waive the right to appeal the District Court‟s order. Wilkerson v.
19 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th
20 Cir. 1991)).
21
22
23

IT IS SO ORDERED.
Dated:

May 17, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28

5