Defrancia v. USA

Filing 5

ORDER CONSTRUING PETITION UNDER 28 U.S.C. § 2255 AS A § 2241 PETITION, AND TRANSFERRING TO THE CENTRAL DISTRICT OF CALIFORNIA re: 1 as to Jason K. Defrancia. Signed by CHIEF U.S. DISTRICT JUDGE J. MICHAEL SEABRIGHT on 10/6/20 16. (afc) 1:12-cr-00252-JMSCERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Fili ng (NEF). Participants not registered to receive electronic notifications will be served by first class mail on October 7, 2014. Mr. Defrancia's 28:2255 Petition, construed as a Petition brought under 28 U.S.C. 2241, will be transferred electronically via CM/ECF transmission.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

JASON K. DEFRANCIA

)
)
Defendant/Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
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)
Plaintiff/Respondent.
)
_______________________________ )

Cr. No. 12-00252 JMS
Civ. No. 16-00374 JMS-RLP
ORDER CONSTRUING PETITION
UNDER 28 U.S.C. § 2255 AS A § 2241
PETITION, AND TRANSFERRING
TO THE CENTRAL DISTRICT OF
CALIFORNIA

ORDER CONSTRUING PETITION UNDER 28 U.S.C. § 2255
AS A § 2241 PETITION, AND TRANSFERRING TO THE
CENTRAL DISTRICT OF CALIFORNIA
I. INTRODUCTION
Defendant/Petitioner Jason K. Defrancia (“Defrancia”) has filed a
Petition under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in a Federal Custody (the “Petition”). Because the court construes the
Petition as one brought under 28 U.S.C. § 2241 and not § 2255, and because
Defrancia is presently incarcerated at Terminal Island FCI located in San Pedro
California, the court transfers the Petition to the Central District of California.
II. BACKGROUND
The Petition arises from Defrancia’s September 11, 2012 guilty plea
to a single count Indictment charging him with knowingly and intentionally

possessing with intent to distribute 50 grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). ECF No. 30.1 On February 22,
2013, the court sentenced Defrancia to 120-months incarceration, to be followed
by five years of supervised release. ECF No. 46. Judgment was entered on
February 27, 2013. ECF No. 47. Defrancia filed a notice of appeal on March 8,
2013, and the Ninth Circuit granted Defrancia’s voluntary dismissal of the appeal,
and issued its mandate, by Order dated April 17, 2013. ECF Nos. 50, 57.2
Defrancia, however, did not place the Petition in the prison mail until June 28,
2016 -- over three years after § 2255(f)’s one-year statute of limitations expired.
ECF No. 58-1.
In apparent recognition of the potential time bar, Defrancia argues a
claim of actual innocence. ECF No. 58. As a result, the court directed the United
States to limit its response to address whether Defrancia makes the necessary
showing of actual innocence. ECF No. 61. The United States filed its Response
on July 14, 2016, and Defrancia filed a Reply on September 20, 2016. ECF Nos.
62, 66.
1

References to “ECF” relate to Cr. No. 12-00252 JMS.

2

Defrancia signed a “Consent to Dismissal of Appeal” on April 9, 2013, stating that he
“hereby consents to the dismissal of the above-captioned appeal, and gives counsel the authority
to file a withdrawal of dismissal thereof in the instant case.” Def.’s Mot. to Dismiss, United
States v. Defrancia, No. 13-10120 (9th Cir. Apr. 16, 2013), ECF No. 5, at 5.
2

After careful review, the court determines that the Petition is timebarred under § 2255(f), construes Defrancia’s “actual innocence” claim as one
brought under § 2241, and transfers the Petition to the Central District of
California.
III. ANALYSIS
A.

The Petition is Time-Barred Under § 2255(f)
A one-year statute of limitations applies to § 2255 motions, which

runs from the latest of:
(1) the date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is removed,
if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f). The June 28, 2016 Petition is not timely under § 2255(f)(1),
and Defrancia makes no argument for the application of §§ 2255(f)(2)-(4).

3

In his Reply, for the first time, Defrancia suggests that equitable
tolling may apply. “Equitable tolling is applicable only if extraordinary
circumstances beyond a prisoner’s control make it impossible to file a petition on
time [and those] extraordinary circumstances [are] the cause of [the]
untimeliness.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (internal
quotation signals and citation omitted). “[A] litigant seeking equitable tolling
bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Defrancia has shown neither that
he has been pursuing his rights diligently, nor that some extraordinary
circumstances stood in his way. He voluntarily dismissed his appeal in mid-April
2013, but took no action until the filing of the Petition over three years later.
Although he claims that he did not have a copy of his file, he presents no evidence
that he attempted to obtain the file or otherwise gather the information necessary
to file a Petition. Simply put, Defrancia has not shown that he was diligent, and
nothing extraordinary stood in his way of filing a timely Petition.
B.

An “Actual Innocence” Claim Falls Under 28 U.S.C. § 2241
Apparently recognizing that his § 2255 Motion is otherwise time-

barred, Defrancia claims “actual innocence.” And by bringing a claim of actual
4

innocence, Defrancia invokes a “savings clause” or “escape hatch” in § 2255(e),3
thus converting the Petition to one arising under 28 U.S.C. § 2241, not 28 U.S.C.
§ 2255.
“The general rule is that a motion under 28 U.S.C. § 2255 is the
exclusive means by which a federal prisoner may test the legality of his detention,
and that restrictions on the availability of a § 2255 motion cannot be avoided
through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464 F.3d 895,
897 (9th Cir. 2006) (citation omitted). Under the “escape hatch” of § 2255(e),
however, a federal prisoner may file a § 2241 petition if, and only if, the remedy
under § 2255 is “inadequate or ineffective to test the legality of his detention.” Id.
(internal quotation marks omitted). A prisoner may file a § 2241 petition under
the escape hatch when the prisoner “(1) makes a claim of actual innocence, and

3

Section 2255(e) provides:
An application for a writ of habeas corpus in behalf of a prisoner
who is authorized to apply for relief by motion pursuant to this
section, shall not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court which sentenced
him, or that such court has denied him relief, unless it also appears
that the remedy by motion is inadequate or ineffective to test the
legality of his detention.

(Emphasis added).
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(2) has not had an unobstructed procedural shot at presenting that claim.” Id. at
898 (internal quotation marks omitted).
So understood, the court must construe Defrancia’s Petition as
brought under § 2241. But as a § 2241 Petition, this court lacks jurisdiction -- the
Petition “must be filed in the district where the petitioner is in custody.” Stephens,
464 F.3d at 897; Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012) (stating that
Ҥ 2241 petitions must be filed in the district where the petitioner is confined,
while § 2255 motions must be filed in the district where the petitioner was
sentenced”). And Defrancia is currently in custody at Terminal Island FCI,
located in the Central District of California. See Federal Bureau of Prisons,
Inmate Locator, https://www.bop.gov/inmateloc/ (last accessed October 6, 2016)
(indicating Defendant is currently located at Terminal Island FCI, with a release
date of December 17, 2021). Likewise, Defrancia’s Petition lists a return address
at Terminal Island FCI. ECF No. 58. As a result, this court lacks jurisdiction over
the Petition.
Because this court lacks jurisdiction over Defrancia’s § 2241 Petition,
under 28 U.S.C. § 1631, “the court shall transfer the action to any other such court
in which the action could have been brought ‘if it is in the interest of justice.’”

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Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir.1990). Here, the court finds it in
the interests of justice to transfer the Petition to the court with jurisdiction, the
Central District of California.4
IV. CONCLUSION
Because the court construes Defrancia’s Petition as one brought under
§ 2241, and because this court lacks jurisdiction over the Petition, the court orders
the Clerk of Court to TRANSFER the Petition to the Central District of
California.5
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 6, 2016.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Defrancia v. United States, Cr. No. 12-00252 JMS & Civ. No. 16-00374 JMS-RLP; Order
Construing Petition under 28 U.S.C. § 2255 as a § 2241 Petition, and Transferring to the Central
District of California
4

The court makes no determination as to the merits of the Petition, including whether
Defrancia has made any showing of actual innocence.
5

To the extent the court rules that Defrancia’s Petition is time-barred under 28 U.S.C.
§ 2255(f), the court the court finds that reasonable jurists would not find the court’s rulings
debatable. Accordingly, a Certificate of Appeal is DENIED.
7