Weischedel v. Tews

Filing 7

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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 STACY L. WEISCHEDEL, Petitioner, 8 vs. 9 ORDER DISMISSING PETITION RANDY TEWS, Respondent. 11 For the Northern District of California United States District Court 10 No. C 12-3232 PJH (PR) / 12 13 Petitioner, a federal prisoner incarcerated at F.C.I. Dublin has filed a pro se petition 14 for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The original petition was 15 dismissed with leave to amend and petitioner has filed an amended petition. 16 17 18 DISCUSSION A. Standard of Review A district court must determine at the outset whether a petition filed by a federal 19 prisoner is pursuant to 28 U.S.C. § 2241 or 28 U.S.C. § 2255, because congress has given 20 jurisdiction over these petitions to different courts. Hernandez v. Campbell, 204 F.3d 861, 21 865-66 (9th Cir. 2000). A petition under § 2241 must be heard in the district of 22 confinement, whereas if the petition is properly brought under § 2255, it must be heard by 23 the sentencing court. Id. at 865. 24 A federal prisoner who seeks to challenge the legality of confinement must generally 25 rely on a § 2255 motion to do so. See Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 26 2006) ("The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by 27 which a federal prisoner may test the legality of his detention, and that restrictions on the 28 availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 1 2241." (citation omitted)). There is, however, an exception to that general rule. Under the 2 "escape hatch" of § 2255, a federal prisoner may file a § 2241 petition if, and only if, the 3 remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." Id. 4 (internal quotation marks omitted). We have held that a prisoner may file a § 2241 petition 5 under the escape hatch when the prisoner "(1) makes a claim of actual innocence, and (2) 6 has not had an unobstructed procedural shot at presenting that claim." Id. at 898 (internal 7 quotation marks omitted). 8 B. 9 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 11 For the Northern District of California United States District Court 10 does not allege that she is actually innocent of the crime, rather she claims that she was 12 improperly sentenced and that certain sentencing enhancements were improper. Petitioner 13 challenges the sentencing enhancements for vulnerable victim and reckless endangerment 14 during flight. These arguments do not raise a claim of actual innocence for a § 2241 15 petition. See Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) (petitioner's escape 16 hatch argument that he should not have qualified as a career offender in sentencing is not 17 one of actual innocence). Even if petitioner’s claims could be construed as actual 18 innocence claims, she has failed to show that she did not have an unobstructed procedural 19 shot at presenting these claims. In fact, petitioner raised the vulnerable victim claim on 20 direct appeal that was denied in a published opinion. U.S. v. Weischedel, 201 F.3d. 1250, 21 1255 (9th Cir. 2000). Petitioner does not allege that she was unable to bring the reckless 22 endangerment during flight claim either on direct appeal or in a § 2255 motion. To the 23 extent petitioner wishes to raise these claims she must file a § 2255 motion in the District of 24 Montana, but this § 2241 petition must be denied. 25 CONCLUSION 26 The petition is DISMISSED for the reasons set forth above. A Certificate of 27 Appealability is DENIED because reasonable jurists would not find the court’s dismissal 28 debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 483 (2000) (standard). The 2 1 clerk shall close the file. 2 3 IT IS SO ORDERED. Dated: March 8, 2013. PHYLLIS J. HAMILTON United States District Judge 4 5 6 G:\PRO-SE\PJH\HC.12\Weischedel3232.dis.wpd 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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