Ricketts v. Zungia

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/12/2014 RECOMMENDING that the document filed by petitioner on 7/22/2014 titled "Successive Petition §2241 Habeas Corpus" 1 be dismissed without prejudice. Referred to Judge Kimberly J. Mueller; Objections due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD WAYNE RICKETTS,

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No. 2:14-cv-1717 KJM CKD P

Petitioner,
v.

FINDINGS AND RECOMMENDATIONS

RAFAEL ZUNIGA,
Respondent.

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Petitioner, a federal prisoner housed at FCI Herlong, has filed a document challenging his

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1989 conviction in the United States District Court for the Northern District of Georgia for

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conspiracy to manufacture methamphetamine. This is petitioner’s fourth such challenge filed in

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this court; 2:11-cv-0261 EFB P, 2:11-cv-3160 DAD P, 2:13-cv-1496 AC P.

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Challenges to convictions by federal prisoners must generally be brought in the court

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where they were convicted. See 28 U.S.C. § 2255(a); Lorensten v. Hood, 223 F.3d 950, 953 (9th

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Cir. 2000). The Ninth Circuit has held that a federal prisoner could proceed with an application

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for writ of habeas corpus under 28 U.S.C. § 2241 in the district of confinement if he: 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. Alaimalo v. U.S., 645 F.3d 1042, 1047 (9th Cir. 2011). Petitioner’s assertion that his

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conviction is invalid is based upon statutory interpretation, not newly discovered evidence, and

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petitioner fails to show that he was precluded in any way from presenting his arguments on direct
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appeal. While petitioner argues that at a ruling by the Middle District of Pennsylvania, U.S. v.

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Conn, 907 F. Supp. 832 (M.D. Pa., 1995), issued after petitioner appealed supports petitioner’s

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legal interpretation, this alone does not provide a basis for this court to find that petitioner was

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somehow precluded from presenting his claims on direct appeal in the Eleventh Circuit, or in a

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motion filed pursuant to 28 U.S.C. § 2255.

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In accordance with the above, IT IS HEREBY RECOMMENDED that the document filed

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by petitioner on July 22, 2014 titled “Successive Petition § 2241 Habeas Corpus” be dismissed

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without prejudice.

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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, petitioner may file written

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objections with the court. In his objections petitioner may address whether a certificate of

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appealability should issue in the event he files an appeal of the judgment in this case. See Rule

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11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a

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certificate of appealability when it enters a final order adverse to the applicant). Failure to file

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

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 12, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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rick1717.frs

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