Ogunbanke v. Apker

Filing 4

ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus, signed by Magistrate Judge Jennifer L. Thurston on 8/28/17. Objections to F&R Due Within Twenty One Days. This case is assigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Jennifer L. Thurston. The new case number is 1:17-cv-01085-LJO-JLT (HC). (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TAYO OLUGBOYEGA OGUNBANKE,

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Petitioner,

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v.

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CRAIG APKER,

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Respondent.

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Case No.: 1:17-cv-01085-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 Taft Correctional Institution in Taft,

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California. He has filed the instant petition pursuant to 28 U.S.C. § 2241 challenging his conviction

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for illegal reentry and the removal order issued by the immigration court. Because Petitioner does not

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satisfy the savings clause in 28 U.S.C. § 2255 which would allow Petitioner to challenge his

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conviction by way of § 2241, the Court will recommend that the instant petition be DISMISSED.

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BACKGROUND

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On March 5, 1999, Petitioner was convicted in Las Vegas, Nevada, of commercial burglary

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and felony forgery of credit card under Nevada Revised Statutes (“NRS”) § 205.740. Ogunbanke v.

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Warden, Case No. 2:12-cv-10211-GHK (C.D. Cal. 2012), ECF No. 1 at 10. 1 Thereafter, Petitioner

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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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was taken into custody by the Bureau of Immigration and Customs Enforcement for commencement

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of removal proceedings. Id. at 10. Petitioner applied for Lawful Permanent Resident Cancellation of

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Removal, but the immigration judge determined he was a convicted aggravated felon and therefore

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ineligible for cancellation of removal. Id. at 10. Petitioner was removed but reentered the United

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States. He was charged with illegal reentry pursuant to 8 U.S.C. § 1326 and pled nolo contendere on

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July 2, 2012. Prior to November 29, 2012, Petitioner’s attorney advised him that there was an

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unresolved issue whether his conviction for violating NRS 205.740 qualified as an aggravated felony.

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Id. at 10. Counsel stated that if the conviction was not an aggravated felony, then he was wrongfully

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denied the opportunity for cancellation of removal. Id. at 10. Counsel advised Petitioner he had an

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argument for reopening his removal hearing to request cancellation of removal if in fact the forgery

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conviction was not an aggravated felony. Id. at 10-11.

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On November 29, 2012, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. §

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2241 in the United States District Court for the Central District of California. Id. Petitioner

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challenged due process violations allegedly committed during the deportation proceedings. The

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petition was construed as a motion to vacate pursuant to 28 U.S.C. § 2255. Id. Subsequently, on

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March 15, 2013, Petitioner filed a § 2255 motion in the same court. Ogunbanke v. United States, Case

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No. 2:13-cv-01896-GHK. The two cases were then consolidated. On August 2, 2013, the motion was

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withdrawn by Petitioner because he did not wish to waive his attorney-client privilege. See Case No.

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2:12-cv-10211-GHK, ECF No. 15.

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On November 3, 2014, Petitioner filed a motion to vacate pursuant to § 2255 in the Central

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District. Ogunbanke v. United States, Case No. 2:14-cv-08498-GHK. Petitioner raised claims of

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ineffective assistance of counsel concerning the illegal reentry conviction. Id., ECF No. 1. He alleged

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counsel failed to inform him that his forgery conviction under NRS 205.740 was not an aggravated

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felony under 8 U.S.C. § 1101(a)(43)(R). Id., ECF No. 1 at 6. He claimed the forgery offense could

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not be used as a basis for removal, his removal in 1999 was fundamentally unfair, and he could not

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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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thereafter be convicted of illegal reentry. Id., ECF No. 1 at 7. On January 5, 2015, the Central District

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denied the motion with prejudice finding that the motion was untimely and that he had not made a

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sufficient showing that he was actually innocent of the illegal reentry charge. Id., ECF No. 8.

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On September 1, 2016, Petitioner filed a motion to set aside judgment in the § 2255 case

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pursuant to Fed. R. Civ. P. Rule 60(b)(4), (6). Id., ECF No. 10. Petitioner again argued that he was

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actually innocent of the illegal reentry charge because the underlying deportation order was void

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insofar as it was based on a forgery conviction that did not qualify as an aggravated felony. Id., ECF

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No. 10. He argued that there had been an intervening change in the law, citing Mathis v. United

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States, 136 S.Ct. 2243 (2016), United States v. Guzman-Ibarez, 792 F.3d 1094 (9th Cir. 2015), and

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United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004). In Mathis, the Supreme Court held

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that a prior conviction does not qualify as the generic form of a predicate violent felony offense in the

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Armed Career Criminal Act if an element of the crime of conviction is broader than an element of the

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generic offense because the crime of conviction enumerates various alternative factual means of

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satisfying a single element. Id. In Guzman-Ibarez, the Ninth Circuit reviewed whether the

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immigration judge had properly applied the Illegal Immigration Reform and Immigrant Responsibility

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Act’s (IIRIRA’s) amended definition of “aggravated felony” to an alien in finding that he was

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deportable as having been convicted of an “aggravated felony.” 792 F.3d 1094. The Ninth Circuit

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held that the immigration judge had violated the alien’s due process rights and remanded the matter to

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the district court. Id. In Ubaldo-Figueroa, the Ninth Circuit vacated a district court’s denial of an

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alien’s collateral attack against his removal proceedings. 364 F.3d 1042. Ubaldo-Figueroa had filed a

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motion to dismiss the indictment because the removal order was obtained in violation of his due

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process rights. Id. at 1047. The Ninth Circuit agreed with Ubaldo-Figueroa and reversed his

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conviction for illegal reentry, ruling that the underlying deportation order could not be used as the

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basis for the conviction. Id. at 1051.

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On October 3, 2016, the Central District Court denied Petitioner’s Rule 60(b) motion. Case

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No. 2:14-cv-08498-GHK, ECF No. 52. The court found that the motion was a disguised § 2255

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motion, and that the motion was another attempt to obtain relief on the merits that had been addressed

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and denied in the prior § 2255 proceeding. Id. The motion was denied. Id. Petitioner appealed to the
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Ninth Circuit, and on November 21, 2016, the Ninth Circuit denied the appeal, finding, inter alia, that

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“jurists of reason would find it debatable whether the underlying section 2255 motion states a valid

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claim of the denial of a constitutional right.” Id., ECF No. 55.

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On August 14, 2017, Petitioner filed the instant habeas petition pursuant to § 2241. He again

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challenges his conviction for illegal reentry based on the allegedly faulty indictment in his removal

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proceedings.

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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 Central District of California, rather

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than an error in the administration of his sentence. Therefore, the appropriate procedure would be to

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file a motion pursuant to § 2255 or a motion challenging the indictment in the Central District of

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California, not a habeas petition pursuant to § 2241 in this Court. Petitioner acknowledges this fact,

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but argues the remedy under § 2255 is inadequate and ineffective. Petitioner’s argument is unavailing,

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because he has had multiple unobstructed procedural opportunities to present his claim, and he does

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not present a claim of actual innocence.

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

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has in fact filed two previous § 2255 motions, as well as a Rule 60(b) motion to set aside judgment.

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The factual basis for his claim, to wit, that the indictment was faulty because the removal proceeding

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was fundamentally unfair, was the same factual basis in the prior motions to the sentencing court.

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Petitioner attempts to circumvent these rulings by recharacterizing his claim as based on new law.

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However, this is a thinly disguised attempt to attack his conviction on the same basis as before.

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Moreover, the decision he now cites as basis for his claim, Moreno-Avedano v. Lynch, 629 Fed.Appx.

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807 (9th Cir. 2015), was filed on November 2, 2015. Moreno-Avedano was issued prior to

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Petitioner’s September 1, 2016, motion to set aside judgment, wherein he cited the 2016 decision in

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Mathis, supra, 2016 WL 3434400. Thus, the factual basis for his claim was presented in prior

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motions, and the legal basis for his claim arose, at the latest, prior to his Rule 60(b) motion to set aside
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judgment. In fact, Petitioner’s attorney advised him of the basis for his claim by letter prior to his

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November 29, 2012, § 2241 filing. November 29, 2012. Petitioner has not shown that he was

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precluded from presenting his claims in his prior motions, and in fact, he has presented the same

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challenges in those prior motions. Therefore, he has failed to demonstrate that he has not had an

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unobstructed procedural opportunity to present his claims.

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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 on the basis of actual innocence. The Central District has already considered and

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rejected his claims of actual innocence, and the Ninth Circuit has affirmed the Central District’s

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decision. See Case No. 2:14-cv-08498-GHK, ECF Nos. 52, 55.

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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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Petitioner’s remedies lie with the immigration court, Board of Immigration Appeals, and/or the U.S.

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District Court for the Central District of California.
ORDER

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The Clerk of the Court is DIRECTED to assign a United States District 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 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 after service of the Objections. The Court

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will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the Order
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of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

August 28, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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