Weischedel v. Tews
Filing
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ORDER DISMISSING PETITION, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 3/8/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 3/8/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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STACY L. WEISCHEDEL,
Petitioner,
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vs.
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ORDER DISMISSING
PETITION
RANDY TEWS,
Respondent.
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For the Northern District of California
United States District Court
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No. C 12-3232 PJH (PR)
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Petitioner, a federal prisoner incarcerated at F.C.I. Dublin has filed a pro se petition
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for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The original petition was
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dismissed with leave to amend and petitioner has filed an amended petition.
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DISCUSSION
A.
Standard of Review
A district court must determine at the outset whether a petition filed by a federal
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prisoner is pursuant to 28 U.S.C. § 2241 or 28 U.S.C. § 2255, because congress has given
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jurisdiction over these petitions to different courts. Hernandez v. Campbell, 204 F.3d 861,
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865-66 (9th Cir. 2000). A petition under § 2241 must be heard in the district of
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confinement, whereas if the petition is properly brought under § 2255, it must be heard by
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the sentencing court. Id. at 865.
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A federal prisoner who seeks to challenge the legality of confinement must generally
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rely on a § 2255 motion to do so. See Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.
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2006) ("The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by
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which a federal prisoner may test the legality of his detention, and that restrictions on the
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availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. §
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2241." (citation omitted)). There is, however, an exception to that general rule. Under the
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"escape hatch" of § 2255, a federal prisoner may file a § 2241 petition if, and only if, the
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remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." Id.
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(internal quotation marks omitted). We have held that a prisoner may file a § 2241 petition
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under the escape hatch when the prisoner "(1) makes a claim of actual innocence, and (2)
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has not had an unobstructed procedural shot at presenting that claim." Id. at 898 (internal
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quotation marks omitted).
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B.
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Legal Claims
Petitioner entered a guilty plea in the District of Montana in 1998. She states that a
direct appeal was denied and no other post conviction relief has been sought. Petitioner
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For the Northern District of California
United States District Court
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does not allege that she is actually innocent of the crime, rather she claims that she was
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improperly sentenced and that certain sentencing enhancements were improper. Petitioner
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challenges the sentencing enhancements for vulnerable victim and reckless endangerment
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during flight. These arguments do not raise a claim of actual innocence for a § 2241
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petition. See Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) (petitioner's escape
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hatch argument that he should not have qualified as a career offender in sentencing is not
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one of actual innocence). Even if petitioner’s claims could be construed as actual
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innocence claims, she has failed to show that she did not have an unobstructed procedural
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shot at presenting these claims. In fact, petitioner raised the vulnerable victim claim on
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direct appeal that was denied in a published opinion. U.S. v. Weischedel, 201 F.3d. 1250,
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1255 (9th Cir. 2000). Petitioner does not allege that she was unable to bring the reckless
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endangerment during flight claim either on direct appeal or in a § 2255 motion. To the
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extent petitioner wishes to raise these claims she must file a § 2255 motion in the District of
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Montana, but this § 2241 petition must be denied.
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CONCLUSION
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The petition is DISMISSED for the reasons set forth above. A Certificate of
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Appealability is DENIED because reasonable jurists would not find the court’s dismissal
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debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 483 (2000) (standard). The
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clerk shall close the file.
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IT IS SO ORDERED.
Dated:
March 8, 2013.
PHYLLIS J. HAMILTON
United States District Judge
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G:\PRO-SE\PJH\HC.12\Weischedel3232.dis.wpd
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For the Northern District of California
United States District Court
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