Clark v. Matevousian

Filing 20

ORDER directing Clerk of Court to assign District Judge. Case assigned to Chief Judge Lawrence J. O'Neill. The new case number is 1:16-cv-00912-LJO-JLT-(HC). FINDINGS and RECOMMENDATIONS to dismiss 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Jennifer L. Thurston on 2/28/2017. Referred to Judge Lawrence J. O'Neill; Objections to F&R due within 21-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AARON CLARK,

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Petitioner,

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v.

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ANDRE MATEVOUSIAN,

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Respondent.

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Case No.: 1:16-cv-00912-JLT (HC)
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION FOR WRIT OF HABEAS
CORPUS
[21-DAY OBJECTION DEADLINE]

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Petitioner is in the custody of the Bureau of Prisons at the United States Penitentiary in

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Atwater, California. He filed the instant federal petition on June 24, 2016, challenging his conviction

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and sentence pursuant to 28 U.S.C. § 2241. Because Petitioner does not satisfy the savings clause in

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28 U.S.C. § 2255 which would allow Petitioner to challenge his conviction by way of § 2241, the

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Court will recommend that the instant petition be DISMISSED.

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BACKGROUND

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On January 6, 2014, Petitioner pled guilty to distribution of methamphetamine (21 U.S.C. §

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841(a)(1), (b)(1)), and carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C.

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§ 924(c)(1)(B)). See United States v. Clark, Case No. 8:12-cr-00243-LSC (D. Neb.).1 Per the plea

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The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333

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bargain, the government agreed to dismiss counts one, three, four, six, and seven of the superseding

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indictment. (Doc. 982 at 1.) For his part, Petitioner agreed to plead guilty to counts two and five, and

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he agreed to waive his right to appeal or collaterally attack his conviction or sentence, subject to two

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exceptions: 1) “The right to timely challenge the defendant’s conviction and the sentence of the Court

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should the Eighth Circuit Court of Appeals or the United States Supreme Court later find that the

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charge to which the defendant is agreeing to plead guilty fails to state a crime”; and 2) “The right to

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seek post-conviction relief based on ineffective assistance of counsel, or prosecutorial misconduct, if

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the grounds for such claim could not be known by the defendant at the time the Defendant [sic] enters

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the guilty plea contemplated by this plea agreement.” (Doc. 98 at 5.) As a result, the court sentenced

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Petitioner to 202 months imprisonment. (Doc. 107.)
Petitioner did not appeal; however, he filed multiple collateral attacks. On September 29,

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2014, he filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 based on a claim of

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ineffective assistance of counsel. (Doc. 113.) On October 24, 2014, the Court denied the motion by

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written order. (Doc. 117.) The Eighth Circuit subsequently denied Petitioner’s motion to file a

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successive habeas application. (Doc. 121) On May 9, 2016, Petitioner filed a second motion to vacate

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under § 2255. (Doc. 126.) He claimed the “firearm was not in no [sic] way used in furtherance of the

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drug crime,” and he cited Johnson v. United States, 135 S.Ct. 2251 (2015), for relief. (Doc. 126.) The

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Nebraska District Court denied the motion as a successive § 2255 motion and noted that Petitioner had

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failed to obtain the required certification from the Eighth Circuit Court of Appeals. (Doc. 128.) On

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June 29, 2016, Petitioner filed a third § 2255 motion in the Nebraska District Court, again citing

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Johnson. Docket Nos. 136, 137. On that same date, the Nebraska District Court issued General Order

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No. 2016-07 which granted Petitioner leave to file an amended § 2255 motion within thirty days.

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(Doc. 138.) Petitioner did not file an amended motion. On November 4, 2016, the Eighth Circuit

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Court of Appeals issued two judgments concerning Petitioner’s cases: 1) his petition to file a

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successive § 2255 motion was denied; and 2) his application for certificate of appealability and appeal

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(9th Cir. 1993). Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1
(N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.).
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In addition, unless otherwise noted, references to the Docket will be to the 8th Circuit case.

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were denied. (Doc. 141, 143.)

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Petitioner now brings this habeas petition challenging his conviction and sentence pursuant to

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Johnson. He claims “the mandatory minimum enhanced sentence for a short-barreled shotgun is void

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as an arbitrary, or an absurd, result,” and the sentencing court’s “application of ‘use’ of firearm, rather

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than possession of firearm provides for an enhancement contrary to law.” Pet. at 3.

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DISCUSSION

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A federal prisoner who wishes to challenge the validity or constitutionality of his federal

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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); see also Stephens v.

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Herrera, 464 F.3d 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007). In such cases, only the

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sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. Generally, a prisoner may not collaterally

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attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162;

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see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980).

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In contrast, a 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 in the district where

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the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65

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(9th Cir.2000) (per curiam). “The general rule is that a motion under 28 U.S.C. § 2255 is the

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exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions

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on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.”

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Stephens, 464 F.3d at 897 (citations omitted).

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Nevertheless, an exception exists by which a federal prisoner may seek relief under § 2241 if

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he can demonstrate the remedy available under § 2255 to be "inadequate or ineffective to test the

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validity of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting 28 U.S.C.

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§ 2255); see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a very narrow

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exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.2003). The remedy under § 2255 usually

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will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or

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because a remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964)
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(a court’s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843

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F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition

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inadequate).

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The Ninth Circuit has held that Section 2255 provides an ‘inadequate and ineffective’ remedy

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(and thus that the petitioner may proceed under Section 2241) when the petitioner: (1) makes a claim

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of actual innocence; and, (2) has never had an ‘unobstructed procedural shot’ at presenting the claim.

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Stephens, 464 F.3d at 898. 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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In this case, Petitioner is challenging the validity and constitutionality of his conviction and

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sentence as imposed by the United States District Court for the District of Nebraska, rather than an

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error in the administration of his sentence. Therefore, the appropriate procedure would be to file a

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motion pursuant to § 2255 in the District of Nebraska, not a habeas petition pursuant to § 2241 in this

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Court. Petitioner acknowledges this fact, but argues the remedy under § 2255 is inadequate and

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ineffective. Petitioner’s argument is unavailing, because he has had an unobstructed procedural

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opportunity to present his claim, and he does not present a claim of actual innocence.

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First, Petitioner has had multiple opportunities to present his claim to the sentencing court. He

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has in fact filed three previous § 2255 motions. The factual basis for his claims, to wit, that he sold his

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drugs and the shotgun at the same time, was known to him prior to the filing of his first motion. The

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legal basis for his claim, to wit, that the purported sale of the shotgun renders Watson v. United States,

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552 U.S. 74 (2007), applicable to him, arose in 2007, which was also before he filed his first § 2255

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motion. Petitioner has not shown that he was precluded from presenting these claims in his prior §

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2255 motions, and therefore, he has failed to demonstrate that he has not had an unobstructed

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procedural opportunity to present his claims.

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Petitioner’s citation to Johnson in support is without merit. In Johnson, the Supreme Court

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held that the residual clause of the Armed Career Criminal Act of 1984 (“ACCA”) was

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unconstitutionally vague. Johnson, 135 S.Ct. at 2557-58. As Respondent points out, Petitioner was

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not sentenced under the ACCA; therefore, Johnson is inapplicable. The ten-year mandatory minimum

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sentence he complains of was a statutory mandate that had nothing to do with the residual act of the
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ACCA.

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In addition, Petitioner has failed to demonstrate that his claims qualify under the savings clause

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of Section 2255 because his claims are not proper claims of “actual innocence.” In the Ninth Circuit, a

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claim of actual innocence for purposes of the Section 2255 savings clause is tested by the standard

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articulated by the United States Supreme Court in Bousley v. United States, 523 U.S. 614 (1998).

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Stephens, 464 U.S. at 898. In Bousley, the Supreme Court explained that, “[t]o establish actual

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innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that

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no reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 (internal quotation marks

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omitted). Petitioner bears the burden of proof on this issue by a preponderance of the evidence, and he

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must show not just that the evidence against him was weak, but that it was so weak that “no reasonable

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juror” would have convicted him. Lorentsen, 223 F.3d at 954. In this case, Petitioner makes no claim

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of being factually innocent of using a shotgun during a drug deal. Rather, he takes issue with the

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mandatory minimum sentence imposed. Under the savings clause, Petitioner must demonstrate that he

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is actually innocent of the crime for which he has been convicted, not the sentence imposed. See Ivy,

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328 F.3d at 1060; Lorentsen, 223 F.3d at 954 (to establish jurisdiction under Section 2241, petitioner

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must allege that he is “‘actually innocent’ of the crime of conviction”). Therefore, the instant § 2241

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petition does not fit within the exception to the general bar against using Section 2241 to collaterally

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attack a conviction or sentence imposed by a federal court. See Stephens, 464 F.3d at 898-99

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(concluding that, although petitioner satisfied the requirement of not having had an “unobstructed

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procedural shot” at presenting his instructional error claim under Richardson v. United States, 526

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U.S. 813, 119 (1999), petitioner could not satisfy the actual innocence requirement as articulated in

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Bousley and, thus, failed to properly invoke the escape hatch exception of Section 2255).

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Even if Petitioner satisfied the savings clause and the Court could entertain his petition, relief

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would be barred since Petitioner waived his right to collateral review in his plea bargain, and the two

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exceptions to his waiver do not apply. First, neither the Eighth Circuit nor the Supreme Court has

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determined that the charge to which Petitioner agreed to plead guilty is no longer a crime. His drug

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and firearm offenses are still federal crimes. Second, Petitioner is not raising claims of ineffective

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assistance of counsel or prosecutorial misconduct. Therefore, he has waived his right to collateral
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review of his conviction. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (enforcing

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a waiver to collateral attack of conviction in § 2255 proceeding).

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Accordingly, the Court concludes that Petitioner has not demonstrated that Section 2255

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constitutes an “inadequate or ineffective” remedy for raising his claims. Section 2241 is not the

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proper statute for raising Petitioner's claims, and the petition must be dismissed for lack of jurisdiction.

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In addition, his claims are barred from review because he validly waived his right to collateral review.

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ORDER
The Court DIRECTS the Clerk of the Court to assign a United States District Judge to this

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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 for lack of jurisdiction.
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

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twenty-one days after being served with a copy of this Findings and Recommendation, any party may

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file written objections with the Court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the

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Objections shall be served and filed within ten court days (plus three days if served by mail) after

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service of the Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28

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U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time

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may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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IT IS SO ORDERED.
Dated:

February 28, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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