Censke v. Matevousian

Filing 25

FINDINGS and RECOMMENDATIONS to Grant Respondent's 21 Motion to Dismiss and Dismiss Petition for Writ of Habeas Corpus, signed by Magistrate Judge Stanley A. Boone on 3/30/17. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS A. CENSKE,

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Case No. 1:16-cv-01424-AWI-SAB-HC

Petitioner,

FINDINGS AND RECOMMENDATION TO
GRANT RESPONDENT’S MOTION TO
DISMISS AND DISMISS PETITION FOR
WRIT OF HABEAS CORPUS

v.

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ANDRE MATEVOUSIAN,

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(ECF No. 21)
Respondent.

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus

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18 pursuant to 28 U.S.C. § 2241.
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I.

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

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22 California. Petitioner was convicted after a jury trial in the United States District Court for the
23 Western District of Michigan of four counts of mailing threatening communications, in violation
24 of 18 U.S.C. § 876(c). Petitioner was sentenced to an imprisonment term of 120 months. (ECF
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25 No. 1 at 2). On appeal, the United States Court of Appeal for the Sixth Circuit affirmed the

26 convictions, but vacated the sentence and remanded for resentencing. United States v. Censke,
27 449 F. App’x 456, 458 (6th Cir. 2011). Following remand, the district court again sentenced
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Page numbers refer to the ECF page numbers stamped at the top of the page.

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1 Petitioner to an imprisonment term of 120 months, which the Sixth Circuit affirmed. United
2 States v. Censke, 534 F. App’x 382, 386 (6th Cir.), cert. denied, 134 S. Ct. 807 (2013).
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Subsequently, Petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or

4 correct his sentence, which the United States District Court for the Western District of Michigan
5 denied in 2014. In August 2015, Petitioner filed a motion to reconsider or amend the § 2255
6 motion, challenging the mental state required for his convictions under 18 U.S.C. § 876(c).
7 Petitioner relied on Elonis v. United States, 135 S. Ct. 2001, 2012 (2015), which clarified the
8 mental state requirement for convictions under a different threat statute, 18 U.S.C. § 875(c). The
9 district court construed the motion to be an unauthorized second or successive § 2255 motion
10 and transferred it to the Sixth Circuit, which denied authorization on July 1, 2016. See Censke v.
11 Fox, 659 F. App’x 485, 486 (10th Cir. 2016) (setting forth the procedural history of Petitioner’s
12 various collateral attacks). Meanwhile, in November 2015, Petitioner filed a § 2241 habeas
13 petition in the United States District Court of the Western District of Oklahoma, challenging his
14 conviction based on Elonis. The district court dismissed the petition for lack of jurisdiction under
15 § 2241, and the Tenth Circuit affirmed the dismissal on August 19, 2016. Censke, 659 F. App’x
16 at 486–87.
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On September 26, 2016, Petitioner filed the instant federal petition for writ of habeas

18 corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1). On January 12, 2017, Respondent filed a
19 motion to dismiss. (ECF No. 21). Petitioner has filed an opposition. (ECF No. 24).
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II.

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DISCUSSION

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

23 Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam). A federal prisoner may
24 challenge the execution of his sentence by filing a petition for writ of habeas corpus under 28
25 U.S.C. § 2241. Zavala v. Ives, 785 F.3d 367, 370 n.3 (9th Cir. 2015). A federal prisoner who
26 wishes to challenge the validity or constitutionality of his federal conviction or sentence must do
27 so by moving the court that imposed the sentence to vacate, set aside, or correct the sentence
28 under 28 U.S.C. § 2255. Alaimalo v. United States, 645 F.3d 1042, 1046 (9th Cir. 2011). “The

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1 general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal
2 prisoner may test the legality of his detention, and that restrictions on the availability of a § 2255
3 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464
4 F.3d 895, 897 (9th Cir. 2006) (citations omitted).
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The instant petition challenges the validity of Petitioner’s conviction. Therefore, the

6 appropriate procedure would be to file a § 2255 motion in the court that imposed the sentence
7 rather than a § 2241 habeas petition in this Court. However, § 2255(e)’s “escape hatch” or
8 “savings clause” permits a federal prisoner to file a habeas corpus petition under § 2241 if the
9 remedy under § 2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C.
10 § 2255(e). A petitioner may proceed under § 2241 pursuant to the escape hatch or savings clause
11 when the petitioner claims to be: “(1) factually innocent of the crime for which he has been
12 convicted; and, (2) has never had an ‘unobstructed procedural shot’ at presenting this claim.” Ivy
13 v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003) (citing Lorentsen v. Hood, 223 F.3d 950, 954
14 (9th Cir. 2000)). The burden is on the petitioner to show that the remedy is inadequate or
15 ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).
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A. Unobstructed Procedural Shot

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The remedy under § 2255 usually will not be deemed inadequate or ineffective merely

18 because a prior § 2255 motion was denied, or because a remedy under that section is
19 procedurally barred. See Ivy, 328 F.3d at 1060 (“In other words, it is not enough that the
20 petitioner is presently barred from raising his claim of innocence by motion under § 2255. He
21 must never have had the opportunity to raise it by motion.”). To determine whether a petitioner
22 never had an unobstructed procedural shot to pursue his claim, the Court considers “(1) whether
23 the legal basis for petitioner’s claim ‘did not arise until after he had exhausted his direct appeal
24 and first § 2255 motion;’ and (2) whether the law changed ‘in any way relevant’ to petitioner’s
25 claim after that first § 2255 motion.” Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008)
26 (quoting Ivy, 328 F.3d at 1060–61). “An intervening court decision must ‘effect a material
27 change in the applicable law’ to establish unavailability.” Alaimalo, 645 F.3d at 1047 (quoting
28 Harrison, 519 F.3d at 960). That is, an intervening court decision must “constitute[] a change in

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1 the law creating a previously unavailable legal basis for petitioner’s claim.” Harrison, 519 F.3d
2 at 961 (second emphasis added) (citing Ivy, 328 F.3d at 1060).
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Here, Petitioner contends that he never had an unobstructed procedural shot at presenting

4 his Elonis claim. Elonis was decided after Petitioner exhausted his direct appeal and first § 2255
5 motion. Elonis concerned 18 U.S.C. § 875(c), which provides: “Whoever transmits in interstate
6 or foreign commerce any communication containing any threat to kidnap any person or any
7 threat to injure the person of another, shall be fined under this title or imprisoned not more than
8 five years, or both.” The statute does not specify that a defendant must have any mental state
9 with respect to these elements, but the Supreme Court held that there is an implicit mental state
10 requirement, which “is satisfied if the defendant transmits a communication for the purpose of
11 issuing a threat, or with knowledge that the communication will be viewed as a threat.” Elonis,
12 135 S. Ct. at 2012.
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In the instant case, Petitioner was convicted under a different statute, 18 U.S.C. § 876(c),

14 which provides in pertinent part:
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Whoever knowingly so deposits or causes to be delivered . . . any
communication . . . addressed to any other person and containing
any threat to kidnap any person or any threat to injure the person of
the addressee or of another, shall be fined under this title or
imprisoned not more than five years, or both.

18 Although § 876(c) contains an express mental state requirement with respect to the delivery
19 element, it does not contain a mental state requirement with respect to the communication
20 containing any threat to kidnap or to injure the person. In Elonis, the Supreme Court held that the
21 mental state requirement applied to each of the statutory elements under § 875(c)—that the
22 communication was transmitted and that the communication contained a threat. 135 S. Ct. at
23 2011. Therefore, applying Elonis to § 876(c), there is a mental state requirement with respect to
24 the communication containing any threat to kidnap or to injure the person. See United States v.
25 Twitty, 641 F. App’x 801, 802 n.1 (10th Cir. 2016) (finding, after the Supreme Court summarily
26 vacated and remanded in light of Elonis, that “a mens rea element concerning the defendant’s
27 subjective intent to threaten, similar to that discussed in Elonis, must also be alleged and proved
28 to sustain a conviction under § 876(c)”).

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In United States v. Williams, the Sixth Circuit2 stated, “This Court has not decided

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2 whether the United States must establish that a defendant had the subjective intent to threaten in
3 order to establish a violation of section 876(c) and we do not decide that issue at this time.” 641
4 F.3d 758, 769 (6th Cir. 2011). Williams noted, however, that the Supreme Court “recognized that
5 in some circumstances the prosecution may need to establish that the defendant subjectively
6 intended to make a threat.” Id. (citing Virginia v. Black, 538 U.S. 343, 364–65 (2003)). Williams
7 was decided while Petitioner’s first direct appeal was pending and before Petitioner filed his first
8 § 2255 motion. Based on Williams, the Court “cannot stay that [Petitioner]’s claim ‘did not
9 become available until after’ the Supreme Court’s decision” in Elonis because at the time
10 Petitioner filed his first § 2255 motion, the Sixth Circuit was undecided and thus “invited the
11 very argument that [Petitioner] attempts to raise” now. Harrison, 519 F.3d at 961 (quoting
12 Stephens, 464 F.3d at 898). Therefore, the Court finds that Petitioner has not established that he
13 “never had an ‘unobstructed procedural shot’ at presenting this claim.” Ivy, 328 F.3d at 1060.
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B. Actual Innocence

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A claim of actual innocence for purposes of the § 2255 escape hatch or savings clause is

16 tested by the standard set forth in Bousley v. United States, 523 U.S. 614 (1998). Stephens, 464
17 F.3d at 898. In Bousley, the Supreme Court explained that “[t]o establish actual innocence,
18 petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no
19 reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 (internal quotation marks
20 omitted). “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Id.
Here, Petitioner argues that he is actually innocent because Elonis requires Petitioner to

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22 have had the subjective intent to threaten in order for conviction under § 876(c). Petitioner
23 alleges that at trial he testified he was exercising free speech and joking with no intent to
24 threaten. (ECF No. 24 at 3). Elonis held that the implicit mental state requirement in § 875(c) “is
25 satisfied if the defendant transmits a communication . . . with knowledge that the communication
26 will be viewed as a threat.” Elonis, 135 S. Ct. at 2012 (emphasis added). Even if Petitioner had
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Petitioner was convicted in the Western District of Michigan, over which the Sixth Circuit has appellate
jurisdiction. Therefore, the Court looks to Sixth Circuit caselaw to determine whether Petitioner’s claim was
available. See Alaimalo, 645 F.3d at 1048–49.

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1 no intent to threaten, the Elonis mental state requirement is satisfied if Petitioner knew that the
2 communication would be viewed as a threat. Petitioner has not demonstrated that, in light of all
3 the evidence, it is more likely than not that no reasonable juror would have convicted him.
Based on the foregoing, the Court finds that Petitioner has failed to establish that he is

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5 actually innocent and has never had an unobstructed procedural shot at presenting his Elonis
6 claim for purposes of qualifying to bring a § 2241 habeas petition under the escape hatch or
7 savings clause of § 2255(e). Therefore, this Court lacks jurisdiction over the petition.
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III.

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RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that Respondent’s motion to dismiss

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11 (ECF No. 21) be GRANTED and the petition for writ of habeas corpus be DISMISSED.
This Findings and Recommendation is submitted to the assigned United States District

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

25 Dated:

March 30, 2017
UNITED STATES MAGISTRATE JUDGE

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