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)

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