Chelberg v. Williams

Filing 9

ORDER Dismissing Habeas Petition and Denying All Pending Motions (Civil Case Nos. #1 , #5 , #8 ). The petition is dismissed. All pending motions are denied. Signed by Judge Barry Ted Moskowitz on 10/15/2020. (All non-registered users served via U.S. Mail Service) (jdt)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

TRAVIS CHELBERG,
Petitioner,

12
13

v.

14

L. Williams,
Respondent.

15

17

BACKGROUND

18

20
21
22
23
24
25

ORDER DISMISSING HABEAS
PETITION AND DENYING ALL
PENDING MOTIONS
[Civil Case Nos. 1, 5, 8]

16

19

Crim. Case No. 3:09-cr-365-BTM
Civil Case No. 3:20-cv-1649-BTM

Petitioner Travis Chelberg, who is proceeding pro se, filed a Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2241. (Civ. Case, ECF No. 1.)

1

He is

currently incarcerated at the Metropolitan Correctional Center in San Diego,
California. (Id.) On December 3, 2010, Mr. Chelberg pled guilty to one count of
assault with the intent to commit a felony (witness tampering), in violation of 18
U.S.C. §§ 113(a)(2) and 7(3), and one count of felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Crim. Case, ECF Nos. 127,
129, 130.) Mr. Chelberg’s plea agreement established that he qualified for a career

26
27
28

1

The petition was initially dismissed for failure to pay the filing fee. (ECF No. 2.) Mr. Chelberg has since paid the
filing fee. (ECF No. 3.)
1
3:09-cr-365-BTM
Civil Case No. 3:20-cv-1649-BTM

1

offender enhancement under U.S.S.G. § 4B1.1. (Crim Case, ECF No. 129, at 7–

2

8.) As part of the plea agreement, Mr. Chelberg waived any right to appeal or to

3

collaterally attack his conviction or sentence. (Id.) On February 24, 2012, the

4

Court sentenced Mr. Chelberg to a term of 168 months in accordance with the joint

5

recommendation of the parties after he was classified as a career offender. (Crim.

6

Case, ECF Nos. 169, 173.) He did not directly appeal the conviction or sentence.

7

On February 25, 2013, Mr. Chelberg filed a motion for post-conviction relief

8

under 28 U.S.C. § 2255. (Crim. Case, ECF No. 181.) Mr. Chelberg argued that

9

one of his predicate prior felony convictions could not properly be counted when

10

applying the career offender sentencing enhancement and therefore argued that

11

the attorney who negotiated the plea agreement and represented him at the

12

sentencing hearing provided ineffective assistance of counsel by advising him to

13

admit career offender status. (Id. at 4.) This Court denied the § 2255 motion and

14

granted a certificate of appealability as to that issue. (Crim. Case, ECF No. 197.)

15

The Ninth Circuit affirmed. (Crim. Case, ECF No. 230.)

16

On April 22, 2019, Mr. Chelberg filed a petition for post-conviction relief under

17

28 U.S.C. § 2241 again arguing that the career offender enhancement was

18

improperly applied at sentencing. (Case No. 3:19-cv-0748-BTM, ECF No. 1.) He

19

also argued that his conviction under 18 U.S.C. § 113(a)(2) does not qualify as a

20

“crime of violence” for purposes of U.S.S.G. § 4B1.1 in light of the Ninth Circuit’s

21

decision in United States v. Dominguez-Maroyoqui, 748 F.3d 918 (9th Cir. 2014).

22

(Id. at 4–5.) The Government filed a motion to dismiss the petition for lack of

23

jurisdiction.

24

subsequently filed numerous requests to amend his petition, supplemental briefing

25

in support of his petition, and responses in opposition to the Government’s motion

26

to dismiss. (Case No. 3:19-cv-0748-BTM, ECF No. 18, 20, 22, 24, 26; Crim. Case,

27

ECF No. 248.) He raised additional challenges to the validity of his detention,

28

specifically that the Court had improperly concluded that Mr. Chelberg had at least

(Case No. 3:19-cv-0748-BTM, ECF No. 15.)

Mr. Chelberg

2
3:09-cr-365-BTM
Civil Case No. 3:20-cv-1649-BTM

1

two predicate prior felony convictions of either a crime of violence or a controlled

2

substance offense for the purposes of U.S.S.G. § 4B1.1 because: (i) one such

3

conviction was insufficiently serious and/or too old to be considered; and (ii) the

4

Court improperly relied upon either insufficient or altered documents in determining

5

that Mr. Chelberg had in fact been convicted of such prior felonies. (Case No.

6

3:19-cv-0748-BTM, ECF No. 22, at 3; Crim. Case, ECF No. 248, at 2.)

7

This Court granted the Government’s motion and dismissed Mr. Chelberg’s

8

§ 2241 petition because his arguments consisted of purely legal issues concerning

9

his sentencing that were not appropriately heard under § 2241 or qualified for relief

10

under § 2255’s “escape hatch” criteria. (Case No. 3:19-cv-0748-BTM, ECF No.

11

30, at 5–6; Crim. Case, ECF No. 259.)

12

On September 24, 2020, Mr. Chelberg filed another § 2241 petition again

13

claiming that that the career offender enhancement was improperly applied at

14

sentencing. (Civil Case, ECF No. 1 (“Pet.”), at 4–5). Mr. Chelberg also moved for

15

appointment of counsel (Civil Case, ECF No. 5), and requested a bail hearing

16

pending adjudication of the 18 U.S.C. § 3582 petition in his criminal case. (Civil

17

Case, ECF No. 8).

18
19
20

Discussion
1. Standard of Review

21

This court may entertain a petition for writ of habeas corpus from a person

22

“in custody in violation of the Constitution or laws or treaties of the United States.”

23

28 U.S.C. § 2241(c)(3). The court shall “award the writ or issue an order directing

24

the respondent to show cause why the writ should not be granted, unless it appears

25

from the application that the applicant or person detained is not entitled thereto.”

26

28 U.S.C. § 2243.

27

A federal prisoner “claiming the right to be released upon the ground that the

28

sentence was imposed in violation of the Constitution or laws of the United States,
3
3:09-cr-365-BTM
Civil Case No. 3:20-cv-1649-BTM

1

or that the court was without jurisdiction to impose such sentence, or that the

2

sentence was in excess of the maximum authorized by law, or is otherwise subject

3

to collateral attack, may move the court which imposed the sentence to vacate, set

4

aside or correct the sentence.”

5

appropriate only where the allegations in the petition are vague or conclusory,

6

palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908

7

F.2d 490, 491 (9th Cir.1990).

28 U.S.C. § 2255.

Summary dismissal is

8
9

2. Analysis

10

Mr. Chelberg’s petition challenges this Court’s application of the sentencing

11

guidelines. (Pet., at 2.) Specifically, he is asking the Court to reconsider his career

12

offender enhancement. (Id. at 4–5.)

13

Section 2241 allows “the Supreme Court, any justice thereof, the district

14

courts and any circuit judge” to grant writs of habeas corpus “within their respective

15

jurisdictions.” Review of the manner of execution of a federal sentence is properly

16

brought as a petition under 28 U.S.C. § 2241. See United States v. Giddings, 740

17

F.2d 770, 772 (9th Cir. 1984). “The general rule is that a motion under 28 U.S.C.

18

§ 2255 is the exclusive means by which a federal prisoner may test the legality of

19

his detention, and that restrictions on the availability of a § 2255 motion cannot be

20

avoided through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464

21

F.3d 895, 897 (9th Cir. 2006) (citations omitted).

22

Because Mr. Chelberg is attacking the legality of his sentence rather than

23

the execution, a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 is the

24

proper vehicle. See Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991)

25

(challenge to sentence following probation or parole revocation must be brought in

26

sentencing court via § 2255 motion); Tripati v. Henman, 843 F.2d 1160, 1162 (9th

27

Cir.1988) (challenge to legality of conviction must be brought in sentencing court

28

via § 2255 motion); see also United States v. Flores, 616 F.2d 840, 842 (5th
4
3:09-cr-365-BTM
Civil Case No. 3:20-cv-1649-BTM

1

Cir.1980) (where challenge is to alleged errors at or prior to sentencing remedy is

2

§ 2255 motion, not § 2241 writ).

3

As the Court previously explained (Case No. 3:19-cv-0748-BTM, ECF No.

4

30, at 4–6; Crim. Case, ECF No. 259), a new § 2255 petition cannot be filed in this

5

Court unless and until the petitioner first obtains authorization from the United

6

States Court of Appeals for the Ninth Circuit. 28 U.S.C. §§ 2244(a), 2255; see

7

United States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011). Since this is

8

not Mr. Chelberg’s first § 2255 petition and he has not obtained authorization from

9

the Ninth Circuit, the Court has no jurisdiction to hear his § 2255 motion, which he

10

filed as a § 2241 petition, challenging his sentence. See Moore v. Reno, 185 F.3d

11

1054, 1055 (9th Cir. 1999) (A “habeas petitioner may not avoid the limitations

12

imposed on successive petitions by styling his petition as one pursuant to 28

13

U.S.C. § 2241”).

14

Accordingly, the petition is DISMISSED. All pending motions are DENIED.

15
16

IT IS SO ORDERED.

17

Dated: October 15, 2020

18
19
20
21
22
23
24
25
26
27
28
5
3:09-cr-365-BTM
Civil Case No. 3:20-cv-1649-BTM