Valdez v. Apker

Filing 6

FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Jennifer L. Thurston on 10/16/2017. Referred to Judge O'Neill; Objections to F&R due by 11/9/2017.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUAN VALDEZ,

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Petitioner,

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v.
CRAIG APKER, Warden,

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Respondent.

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Case No.: 1:17-cv-01308-LJO-JLT (HC)
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 (“BOP”) at the Taft Correctional

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Institution in Taft, California. He has filed the instant federal petition challenging his conviction and

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

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

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will recommend that the instant petition be DISMISSED.

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BACKGROUND

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In September of 1999, Petitioner was found guilty of one count of conspiracy, four counts of

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distribution and possession of cocaine, five counts of maintaining a place for drug distribution, and

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two counts of interstate drug trafficking. (Doc. 1 at 2.1) He was sentenced to serve a number of

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Citations are to ECF pagination.

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concurrent sentences totaling 360 months of imprisonment. (Doc. 1 at 4.)
Petitioner appealed to the Ninth Circuit Court of Appeals. He claimed the district court erred

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by permitting a verdict to be entered by 11 jurors. United States v. Marin, 8 F.App'x 815, 816 (9th

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Cir. 2001). The conviction was affirmed on May 7, 2001. Id.

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Petitioner then filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §

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2255 in the United States District Court for the District of Alaska. He challenged his sentence under

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Apprendi v. New Jersey, 530 U.S. 466 (2000), and he raised several claims of ineffective assistance of

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counsel. The District Court of Alaska denied the motion. Petitioner appealed to the Ninth Circuit

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Court of Appeals. On July 12, 2004, the Ninth Circuit rejected all claims and denied the appeal.

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Specifically, the Ninth Circuit noted that it had previously “h[e]ld that Apprendi does not apply

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retroactively to cases on initial collateral review.” United States v. Valdez, 104 F.App’x 624, 626 (9th

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Cir. 2004) (quoting United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.), cert. denied,

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537 U.S. 939 (2002)).

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On October 2, 2017, Petitioner filed the instant petition for writ of habeas corpus pursuant to

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28 U.S.C. § 2241. Again, he attacks his sentence based on Apprendi. He contends that he was

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wrongfully sentenced to a term of 360 months because the statutory maximum sentence was 20 years.

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He alleges the trial court violated Apprendi when it based its sentence on facts not determined by a

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jury. Petitioner attempts to couch his claim as a challenge to the BOP’s “execution of his sentence”;

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however, there are no allegations that the BOP is executing a sentence different from that which was

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handed down by the sentencing court. It is clear that Petitioner is directly challenging the sentence

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itself, not the manner in which it is being executed.

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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 sentence as

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imposed by the United States District Court for the District of Alaska, rather than an error in the

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

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pursuant to § 2255 in the District of Alaska, not a habeas petition pursuant to § 2241 in this Court.
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Petitioner acknowledges this fact, but argues the remedy under § 2255 is inadequate and ineffective.

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Petitioner’s argument is unavailing, because he has had unobstructed procedural opportunities to

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

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First, Petitioner acknowledges that he had previous opportunities to present his claim to the

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sentencing court and Ninth Circuit. He filed a § 2255 motion in the sentencing court which raised his

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Apprendi claim, and the motion was denied. He appealed to the Ninth Circuit, and the appeal was

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denied. Therefore, he has in fact had unobstructed procedural opportunities 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 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 the numerous counts of which he was convicted. Rather, he takes issue

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with the mandatory minimum sentence imposed. Under the savings clause, Petitioner must

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demonstrate that he is actually innocent of the crime for which he has been convicted, not the sentence

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imposed. See Ivy, 328 F.3d at 1060; Lorentsen, 223 F.3d at 954 (to establish jurisdiction under

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Section 2241, petitioner must allege that he is “‘actually innocent’ of the crime of conviction”).

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Therefore, the instant § 2241 petition does not fit within the exception to the general bar against using

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Section 2241 to collaterally attack a conviction or sentence imposed by a federal court. See Stephens,

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464 F.3d at 898-99 (concluding that, although petitioner satisfied the requirement of not having had an

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“unobstructed procedural shot” at presenting his instructional error claim under Richardson v. United

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States, 526 U.S. 813, 119 (1999), petitioner could not satisfy the actual innocence requirement as

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articulated in 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 Apprendi has not been held to be retroactive to cases on collateral review.

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Harris v. United States, 536 U.S. 545, 581 (2002) (“No Court of Appeals, let alone this Court, has held

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that Apprendi has retroactive effect.”); United States v. Sanchez-Cervantes, 282 F.3d 664 (9th

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Cir.2002) (the ruling in Apprendi does not apply retroactively to initial petitions for collateral review).

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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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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:

October 16, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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