(HC) Jean v. Warden

Filing 12

FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Sheila K. Oberto on 1/4/2023. Referred to Judge Anthony W. Ishii. Objections to F&R due within Twenty-One (21) Days. (Sant Agata, S)

Case 1:22-cv-01039-AWI-SKO Document 12 Filed 01/05/23 Page 1 of 5

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHNNY JEAN,

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Petitioner,
v.

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WARDEN, USP-ATWATER,
Respondent.

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Case Nos.: 1:22-cv-00496-AWI-SKO (HC)
1:22-cv-1039-SKO (HC)
FINDINGS AND RECOMMENDATION TO
DISMISS PETITIONS FOR WRIT OF HABEAS
CORPUS
[TWENTY-ONE DAY OBJECTION DEADLINE]

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

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pursuant to 28 U.S.C. § 2241. Petitioner was convicted in the United States District Court for the

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Southern District of Florida. Petitioner is incarcerated at the U.S. Penitentiary in Atwater, California.

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Petitioner filed his first federal habeas petition in the Sacramento Division of this Court on

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April 18, 2022. Petitioner filed a second federal habeas petition in the Sacramento Division of this

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Court on June 3, 2022. Because venue was proper in the Fresno Division, the petitions were

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transferred. On August 5, 2022, Respondent filed a notice of related cases in both actions. On

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September 30, 2022, Respondent filed a motion to dismiss both petitions. Upon review of the

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pleadings, the Court will recommend Respondent’s motion be GRANTED and the petitions be

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DISMISSED for lack of jurisdiction.

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Case 1:22-cv-01039-AWI-SKO Document 12 Filed 01/05/23 Page 2 of 5

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BACKGROUND

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On October 14, 2014, Petitioner was indicted in the United States District Court for the

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Southern District of Florida of one count of possessing a firearm as a convicted felon in violation of 18

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U.S.C. §§ 922(g) and 924(e)(1). See United States v. Jean, Case No. 14-cr-20769 (S.D. Fla.).

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Petitioner was found guilty in a bench trial and was sentenced pursuant to the Armed Career Criminal

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Act (“ACCA”) to a 180-month term of imprisonment, on May 4, 2015. Id.
On January 13, 2016, the Eleventh Circuit Court of Appeals affirmed Petitioner’s conviction

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and sentence. See United States v. Jean, 636 F.App’x 767 (11th Cir. 2016).
On June 23, 2016, Petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255.

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Jean, Case No. 14-cr-20769. Petitioner brought various claims concerning his § 924(e) priors, but the

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claims were denied on the merits. The sentencing court concluded that Petitioner had indeed suffered

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five qualifying violent predicate offenses with respect to his enhanced sentence. Petitioner then

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brought several successive § 2255 motions in the sentencing court. See Case Nos. 18-cv-23140 and

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20-cv-22174. Those motions were denied or dismissed.
On January 3, 2022, Petitioner filed a successive § 2255 motion. Petitioner raised the same

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claim he now raises in this Court in case no. 1:22-cv-01039-AWI-SKO (HC). See In re Jean, USCA

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No. 22-10012 (11th Cir. 2022). On January 14, 2022, the court dismissed and denied the petition,

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noting that regarding post-Borden era relief, the appellate court-of-conviction has "certified a question

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to the Florida Supreme Court asking if an individual can violate § 784.011 with a mens rea of

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recklessness." See Appendix pp 57-62 (citing Somers v. United States, 15 F.4th 1049, 1056 (11th Cir.

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2021).

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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; Hernandez v. Campbell, 204 F.3d 861,

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865 (9th Cir. 2000). Generally, a prisoner may not collaterally attack a federal conviction or sentence
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by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States,

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929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 F.2d

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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, 204 F.3d at 865. “The general rule

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is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test

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the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be

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avoided through a petition under 28 U.S.C. § 2241.” Stephens, 464 F.3d at 897 (citations omitted).

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An exception exists by which a federal prisoner may seek relief under § 2241, referred to as the

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“savings clause” or “escape hatch” of § 2255. United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997)

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(quoting 28 U.S.C. § 2255); see Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008); Hernandez,

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204 F.3d at 864-65. “[I]f, and only if, the remedy under § 2255 is ‘inadequate or ineffective to test the

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legality of his detention’” may a prisoner proceed under § 2241. Marrero v. Ives, 682 F.3d 1190, 1192

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(9th Cir. 2012); see 28 U.S.C. § 2255(e). 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 exception will not apply

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“merely because section 2255’s gatekeeping provisions,” such as the statute of limitations or the

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limitation on successive petitions, now prevent the courts from considering a § 2255 motion. Id., 328

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F.3d at 1059 (ban on unauthorized or successive petitions does not per se make § 2255 inadequate or

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ineffective); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s denial of a prior § 2255 motion is

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insufficient to render § 2255 inadequate.); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per

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curiam) (§ 2255 not inadequate or ineffective simply because the district court dismissed the § 2255

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motion as successive and court of appeals did not authorize a successive motion).

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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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Harrison, 519 F.3d at 959; Stephens, 464 F.3d at 898; accord Marrero, 682 F.3d at 1192. The burden

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is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315
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F.2d 76, 83 (9th Cir. 1963). If a petitioner fails to meet this burden, his § 2241 petition must be

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dismissed for lack of jurisdiction. Ivy, 328 F.3d at 1060.

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In his petition in 1:22-cv-01039-AWI-SKO, Petitioner is challenging the validity and

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constitutionality of his conviction and sentence as imposed by the United States District Court for the

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Southern District of Florida, rather than an error in the administration of his sentence. Therefore, the

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appropriate procedure would be to file a motion pursuant to § 2255 in the Florida District Court, not a

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habeas petition pursuant to § 2241 in this Court. Petitioner acknowledges this fact, but contends the

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remedy under § 2255 is inadequate and ineffective. Petitioner’s argument is unavailing, because he

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does not demonstrate he has never had an unobstructed procedural opportunity to present his claim.

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As previously noted, Petitioner has already presented and been denied relief on his Borden §

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924(e) claim. Petitioner is asking another district court to render another decision on the claim--

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which the court cannot do. The Court also notes that Petitioner has availed himself of several

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opportunities in presenting his claim, as he has repeatedly raised the claim on direct appeal and in

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collateral challenges. Also, Petitioner may still have yet another opportunity to seek relief on his

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claim in the sentencing court. In dismissing the latest § 2255 motion, the sentencing court noted that

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the issue of whether Florida’s aggravated assault offense qualifies as a violent felony offense under the

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ACCA is still pending. Thus, Petitioner fails to show he has never had an unobstructed procedural

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opportunity to present his claim.

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With respect to his claim in his petition in Case No. 1:22-cv-00496-AWI-SKO, the Court is

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likewise without jurisdiction. In that petition, Petitioner complains of various filing restrictions with

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respect to his 18 U.S.C. § 3582 motion for compassionate release. He contends his equal protection

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rights are being violated because he cannot obtain meaningful consideration for compassionate release

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in the Eleventh Circuit, as compared with other circuits. As Respondent correctly notes, habeas

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jurisdiction is unavailable for violations of civil rights or challenges to the conditions of confinement.

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Such claims must be brought in a civil rights action pursuant to Bivens v. Six Unknown Named

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Agents of the Fed. Bureau of Narc., 403 U.S. 388 (1971). As Respondent correctly notes, Petitioner

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does not present a cognizable habeas claim. See Figueroa v. Chapman, 347 F.App’x 48, 50 (5th Cir.

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2009) (“A Section 2241 petition may be granted if the inmate ‘is in custody in violation of the
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Case 1:22-cv-01039-AWI-SKO Document 12 Filed 01/05/23 Page 5 of 5

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Constitution or laws or treaties of the United States’ . . . . A compassionate release is not a matter of

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illegal or unconstitutional restraint.”). Moreover, his motion for compassionate release is before the

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wrong court. “Only the sentencing court can entertain such requests.” Bolden v. Ponce, 2020 WL

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2097751, at *2 (C.D. Cal. 2020) (citing United States v. Raia, 954 F.3d 594, 595 (3d Cir. 2020)

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(“Section 3582’s text requires those motions to be addressed to the sentencing court, a point several

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Circuits have noted . . . .”).
Accordingly, the Court concludes Petitioner has not demonstrated that Section 2255 constitutes

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an “inadequate or ineffective” remedy for raising his § 924(e) claim, and the Court is without habeas

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jurisdiction to entertain his compassionate release claim. The petition should be summarily dismissed

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for lack of jurisdiction.

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RECOMMENDATION

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Based on the foregoing, the Court RECOMMENDS that the Petitions for Writ of Habeas

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Corpus in both related cases be 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 (21) days after being served with a copy of this Findings and Recommendation, any party

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may file written objections with the Court. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendation.” Replies to objections shall be filed within ten

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(10) court days after objections are filed. The Court will then review the Magistrate Judge’s ruling

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pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

/s/ Sheila K. Oberto

January 4, 2023

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UNITED STATES MAGISTRATE JUDGE

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