Manigault v. Ives

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/3/2012, RECOMMENDING that respondent's 21 motion to dismiss be granted; and the Clerk be directed to close the case. Referred to Judge William B. Shubb; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KELIN MANIGAULT,
Petitioner,

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vs.

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No. 2:11-cv-0410 WBS EFB P

MICHAEL BABCOCK,1
Respondent.

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FINDINGS AND RECOMMENDATIONS
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Petitioner is a federal prisoner without counsel seeking a writ of habeas corpus pursuant

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to 28 U.S.C. § 2241. Respondent moves to dismiss this action on the grounds that it is not

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properly brought under 28 U.S.C. § 2241, and that this court lacks jurisdiction to consider the

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petition. For the reasons explained below, the undersigned recommends that petitioner’s

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application for a writ of habeas corpus be dismissed.

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Richard B. Ives was previously named as the respondent. Michael Babcock is the
current warden at the Federal Correctional Institution at Herlong, California, where petitioner is
confined. “Where a prisoner files an action under section 2241, the prisoner must name the
warden of the penitentiary where he is confined as a respondent.” Johnson v. Reilly, 349 F.3d
1149, 1153 (9th Cir. 2003). Accordingly, the court now substitutes in Michael Babcock as the
respondent.
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I.

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Background
Petitioner was charged with a five-count indictment in the District Court for the Eastern

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District of Pennsylvania. United States v. Manigault, 228 Fed. Appx. 183, 184 (3d Cir. 2007).

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He pled guilty to two counts of violating 21 U.S.C. § 841(a)(1) for distribution and possession

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with intent to distribute crack cocaine. Id. The trial court determined that petitioner was a career

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offender under the United States Sentencing Guidelines (“Sentencing Guidelines”) and

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sentenced him to 235 months of imprisonment. Id. Petitioner appealed the judgment to the

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United States Court of Appeals for the Third Circuit, arguing, inter alia, that the trial court erred

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in designating him as a career offender because he did not have two prior felony conviction of

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either a crime of violence or a controlled substance offense as required by the Sentencing

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Guidelines.2 Id. at 185-186. Specifically, petitioner argued that his prior conviction for

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Recklessly Endangering Another Person was not a “crime of violence” as defined by the

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Sentencing Guidelines, and therefore he could not be categorized as a career offender. Id. at

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186. The Court of Appeals for the Third Circuit rejected the argument and affirmed petitioner’s

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conviction and sentence. Id.
On July 10, 2008, petitioner filed in the United States District Court for the Middle

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District of Pennsylvania a motion to vacate, set aside, or correct his sentence pursuant to 28

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U.S.C. § 2255. In his § 2255 motion, he asserted three claim of ineffective assistance of counsel

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relating to his classification as a career offender. United States v. Manigault, 1:CR-05-187, 2008

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WL 4279527, * 1 (M.D. Pa. Sept. 11, 2008). That petition was denied on September 11, 2008.

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Id. at *5.

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The Sentencing Guidelines provide that “[a] defendant is a career offender if (1) the
defendant was at least eighteen years old at the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or
a controlled substance offense; and (3) the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).
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Petitioner now proceeds on his March 22, 2012 petition filed pursuant to 28 U.S.C.

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§ 2241. Dckt. No. 1. Petitioner claims that this court has jurisdiction over the matter because he

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is actually innocent of being a career offender and has not had an unobstructed procedural shot at

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pursuing his claim. Pet’r’s Opp’n to Resp.’s Mot. to Dism., Dckt. No. 26 at 2.

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II.

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Analysis
Respondents argue that because petitioner is challenging the legality of his sentence, he

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must bring a petition under § 2255 in the sentencing court, and this court therefore lacks

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jurisdiction over his petition. Resp.’s Mot. to Dism., Dckt. No. 21 at 6-9.

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Generally, a challenge to the legality of a sentence should be brought under

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§ 2255 in the court in which the petitioner was sentenced rather than under 28 U.S.C. § 2241 in

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the court for the geographic territory encompassing the prison in which the petitioner is

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confined. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). This general rule has

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one exception–under the savings clause of § 2255 (also known as the “escape hatch”), a federal

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prisoner may challenge the legality of his sentence under § 2241 in the custodial court where his

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remedy under § 2255 is inadequate or ineffective to test the legality of his detention. Id.; 28

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U.S.C. § 2255(e).

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“[A] motion meets the escape hatch criteria of § 2255 when the petitioner (1) makes a

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claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that

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claim.” Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008) (internal quotation marks

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omitted). Petitioner essentially argues that because he is actually innocent of being a career

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offender under the Sentencing Guidelines and has not had an unobstructed procedural shot at

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presenting his claim, he may seek habeas relief in this court pursuant to 28 U.S.C. § 2241. The

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court need not determine whether petitioner meets the unobstructed procedural shot requirement

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because, assuming that he does, he has not satisfied the actual innocence requirement.

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“In this Circuit, a claim of actual innocence for purposes of the escape hatch of § 2255 is
tested by the standard articulated by the Supreme Court in Bousley v. United States, 523 U.S.
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614.” Marrero v. Ives, No. 09-16053, 2012 WL 2306496, *2 (9th Cir. June 19, 2012). Under

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Bousley, “actual innocence means factual innocence, not mere legal insufficiency.” 523 U.S. at

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623. To establish factual innocence, a petitioner must demonstrate that “in light of all the

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evidence, it is more likely than not that no reasonable juror would have convicted him.”

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Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006).

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Petitioner has not alleged that he is factually innocent of distribution and possession with

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intent to distribute crack cocaine, nor has he demonstrated that no reasonable juror would have

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convicted him of those crimes. He also does not contend that he is factually innocent of the

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underlying offenses that were used in determining his status as a career offender. Rather,

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petitioner claims that under the Supreme Court’s decision in Johnson v. United States, __ U.S.

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__, 130 S.Ct. 1265 (2010), his prior conviction for Recklessly Endangering Another Person does

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not constitute a crime of violence and therefore it could not be used to establish his career

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offender status.3 This argument fails, however, because it is a purely legal argument unrelated to

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whether petitioner is factually innocent. See Marrero, 2012 WL 2306496 at *4 (“We simply

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hold that the purely legal argument that a petitioner was wrongly classified as a career offender

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under the Sentencing Guidelines is not cognizable as a claim of actual innocence under the

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escape hatch.”). Thus, petitioner has failed to establish actual innocence.

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III.

Conclusion
Petitioner has not satisfied the actual innocence requirement of § 2255’s savings clause.

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Therefore, his claims must be brought in a § 2255 petition in the sentencing court, and this court

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lacks jurisdiction over his § 2241 petition.

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In Johnson, the Supreme Court addressed whether under Florida law simple battery
constitutes a violent felony for purposes of determining a defendant’s career offender status
under the Armed Career Criminal Act. 130 S.Ct. at 1270-74.
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Accordingly, it is hereby RECOMMENDED that:

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1. Respondent’s motion to dismiss be granted; and

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2. The Clerk be directed to close the case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 3, 2012.

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