(HC) Hernandez v. Trate

Filing 10

ORDER DIRECTING Clerk of Court to Randomly Assign District Judge; FINDINGS and RECOMMENDATION to Dismiss 7 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Stanley A. Boone on 11/17/2022. Referred to Judge Ishii; Objections to F&R due within thirty (30) days. (Rivera, O)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 JAIRO JOAQUIN HERNANDEZ, 8 Case No. 1:22-cv-01115-SAB-HC Petitioner, 9 FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS v. 10 B.M. TRATE, 11 ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE Respondent. 12 13 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 14 15 pursuant to 28 U.S.C. § 2241. 16 I. 17 BACKGROUND Petitioner is currently incarcerated at the United States Penitentiary in Atwater, 18 1 19 California. (ECF No. 7 at 2.) Petitioner pleaded guilty in the United States District Court for the 20 Northern District of California to racketeering conspiracy (Count One), conspiracy to commit 21 murder in aid of racketeering activity (Count Two), conspiracy to commit assault with a 22 dangerous weapon in aid of racketeering activity (Count Three), use of a firearm in relation to a 23 crime of violence (Count Six), and use of a firearm causing murder (Count Seven). On 24 December 19, 2017, Petitioner was sentenced to an imprisonment term of 324 months. (ECF No. 25 7 at 2, 6.) Pursuant to the terms of his plea agreement, Petitioner did not file a direct appeal. On 26 27 December 17, 2018, Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 1 Page numbers refer to the ECF pagination stamped at the top of the page. 1 1 28 U.S.C. § 2255. On June 3, 2019, the district court denied the motion on the merits. (ECF No. 2 7 at 6.) On September 3, 2019, Petitioner sought authorization to file a second or successive 3 § 2255 motion in light of United States v. Davis, 139 S. Ct. 2319 (2019). On April 27, 2020, the 4 Ninth Circuit granted authorization to file a successive § 2255 motion. (ECF No. 7 at 7.) The United States District Court for the Northern District of California denied 5 6 Petitioner’s authorized successive § 2255 motion, finding that Petitioner had procedurally 7 defaulted on the claim that his sentences for Counts Six and Seven should be vacated based on 8 Davis. (ECF No. 7 at 10.) On October 26, 2020, the district court denied Petitioner’s motion for 9 reconsideration, but issued a certificate of appealability. (Id. at 13–14.) On January 6, 2022, the 10 Ninth Circuit affirmed, finding that “[t]he district court permissibly concluded that Hernandez 11 procedurally defaulted the challenge to his sentence under 18 U.S.C. § 924(c) by failing to raise 12 that challenge on direct appeal,” and noting that Petitioner “does not challenge the district court’s 13 conclusion that he failed to demonstrate the necessary cause and prejudice or actual innocence to 14 excuse his procedural default.” (Id. at 15, 16.) On September 1, 2022, Petitioner filed a petition for writ of habeas corpus pursuant to 28 15 16 U.S.C. § 2241 in this Court, asserting that he is actually innocent of 18 U.S.C. § 924(c)(1)(A)(iii) 17 and (c)(3)(B) in light of Davis. (ECF No. 1.) On September 13, 2022, the Court granted 18 Petitioner leave to file an amended petition because Petitioner had not provided the Court with 19 sufficient facts to enable the Court to determine whether Davis is applicable and Respondent 20 should be ordered to show cause why the writ should not be granted. (ECF No. 3.) On October 21 11, 2022, Petitioner filed the first amended petition (“FAP”), asserting that he is actually 22 innocent of Counts Six and Seven based on Davis. (ECF No. 7.) 23 II. 24 DISCUSSION Rule 4 of the Rules Governing Section 2254 Cases2 requires preliminary review of a 25 26 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 27 28 2 The Rules Governing Section 2254 Cases apply to § 2241 habeas petitions. See Rule 1(b) of the Rules Governing Section 2254 Cases (“The district court may apply any or all of these rules to a habeas corpus petition not covered by” 28 U.S.C. § 2254.). 2 1 to file a response, if it “plainly appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 3 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 4 A federal prisoner who wishes to challenge the validity or constitutionality of his federal 5 conviction or sentence must do so by moving the court that imposed the sentence to vacate, set 6 aside, or correct the sentence under 28 U.S.C. § 2255. Alaimalo v. United States, 645 F.3d 1042, 7 1046 (9th Cir. 2011). “The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive 8 means by which a federal prisoner may test the legality of his detention, and that restrictions on 9 the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. 10 § 2241.” Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citations omitted). 11 Nevertheless, a “savings clause” or “escape hatch” exists in § 2255(e) by which a federal 12 prisoner may seek relief under § 2241 if he can demonstrate the remedy available under § 2255 13 to be “inadequate or ineffective to test the validity of his detention.” Alaimalo, 645 F.3d at 1047 14 (internal quotation marks omitted) (quoting 28 U.S.C. § 2255); Harrison v. Ollison, 519 F.3d 15 952, 956 (9th Cir. 2008); Hernandez v. Campbell, 204 F.3d 861, 864–65 (9th Cir. 2000) (per 16 curiam). The Ninth Circuit has recognized that it is a very narrow exception. See Ivy v. Pontesso, 17 328 F.3d 1057, 1059 (9th Cir. 2003). The remedy under § 2255 usually will not be deemed 18 inadequate or ineffective merely because a prior § 2255 motion was denied, or because a remedy 19 under § 2255 is procedurally barred. Id. The burden is on the petitioner to show that the remedy 20 is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 21 “An inquiry into whether a § 2241 petition is proper under these circumstances is critical 22 to the determination of district court jurisdiction” because § 2241 petitions must be heard in the 23 custodial court while § 2255 motions must be heard in the sentencing court. Hernandez, 204 F.3d 24 at 865. If the instant petition is properly brought under 28 U.S.C. § 2241, it may be heard in this 25 Court. Conversely, if the instant petition is in fact a disguised § 2255 motion, it must be heard in 26 the United States District Court for the Northern District of California as the sentencing court. 27 A petitioner may proceed under § 2241 pursuant to the escape hatch when the petitioner 28 “(1) makes a claim of actual innocence, and (2) has not had an ‘unobstructed procedural shot’ at 3 1 presenting that claim.” Stephens, 464 F.3d at 898 (citing Ivy, 328 F.3d at 1060). The Court will 2 begin its analysis with the second factor. 3 The remedy under § 2255 usually will not be deemed inadequate or ineffective merely 4 because a prior § 2255 motion was denied, or because a remedy under that section is 5 procedurally barred. See Ivy, 328 F.3d at 1060 (“In other words, it is not enough that the 6 petitioner is presently barred from raising his claim of innocence by motion under § 2255. He 7 must never have had the opportunity to raise it by motion.”). To determine whether a petitioner 8 never had an unobstructed procedural shot to pursue his claim, the Court considers “(1) whether 9 the legal basis for petitioner’s claim ‘did not arise until after he had exhausted his direct appeal 10 and first § 2255 motion;’ and (2) whether the law changed ‘in any way relevant’ to petitioner’s 11 claim after that first § 2255 motion.” Harrison, 519 F.3d at 960 (quoting Ivy, 328 F.3d at 1060– 12 61). “An intervening court decision must ‘effect a material change in the applicable law’ to 13 establish unavailability.” Alaimalo, 645 F.3d at 1047 (quoting Harrison, 519 F.3d at 960). That 14 is, an intervening court decision must “constitute[] a change in the law creating a previously 15 unavailable legal basis for petitioner’s claim.” Harrison, 519 F.3d at 961. 16 Here, the Ninth Circuit authorized Petitioner to file a successive § 2255 motion based on 17 Davis. (ECF No. 7 at 7.) In his authorized successive § 2255 motion, Petitioner asserted that his 18 sentences for Counts Six and Seven should be vacated based on Davis. (Id. at 10.) In the FAP, 19 Petitioner asserts that he is actually innocent of his sentences for Counts Six and Seven based on 20 Davis. (Id. at 3.) The record is clear that Petitioner had the opportunity to raise his Davis claims 21 in his authorized successive § 2255 motion. Therefore, the Court finds that Petitioner has not 22 established that he “never had an ‘unobstructed procedural shot’ at presenting this claim.” Ivy, 23 328 F.3d at 1060. See id. (“In other words, it is not enough that the petitioner is presently barred 24 from raising his claim of innocence by motion under § 2255. He must never have had the 25 opportunity to raise it by motion.”). 26 “[F]or Petitioner’s claim to be a legitimate § 2241 petition, he must satisfy both . . . 27 requirements.” Muth v. Fondren, 676 F.3d 815, 819 (9th Cir. 2012). As Petitioner has failed to 28 establish that he never had an unobstructed procedural shot at presenting his actual innocence 4 1 claim, Petitioner cannot proceed under the escape hatch.3 Accordingly, this Court lacks 2 jurisdiction over the petition, and the petition should be dismissed. 3 III. 4 RECOMMENDATION & ORDER Based on the foregoing, the Court HEREBY RECOMMENDS that the petition for writ of 5 6 habeas corpus be DISMISSED. Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 7 8 Judge. This Findings and Recommendation is submitted to the assigned United States District 9 10 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 11 Rules of Practice for the United States District Court, Eastern District of California. Within 12 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 13 written objections with the court and serve a copy on all parties. Such a document should be 14 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 15 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 16 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 17 time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 18 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 Dated: November 17, 2022 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 3 In light of this conclusion, the undersigned declines to address whether Petitioner has presented a cognizable claim 28 of actual innocence for purposes of qualifying for the escape hatch. 5

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