Allen v. Ives

Filing 33

OPINION AND ORDER: Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1 ) is DENIED, and this proceeding is DISMISSED. The Court issues a Certificate of Appealability as to whether 28 U.S.C. § 2241 habeas corpus jurisdiction is appropriate. Signed on 12/07/2017 by Judge Marco A. Hernandez. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MICHAEL ALLEN,
Petitioner,
v.
RICHARD IVES,
Respondent.
Elizabeth G. Daily
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Billy J. Williams
United States Attorney
District of Oregon
Natalie K. Wight
Assistance United States Attorney
United State’s Attorney’s Office
1000 SW Third Avenue, Suite 600
Portland, Oregon 97204-2902
Attorneys for Respondent

1 – OPINION AND ORDER

Case No. 3:17-cv-00044-HZ
OPINION AND ORDER

HERNANDEZ, Judge.
Petitioner is currently an inmate at the Federal Correctional Institution in Sheridan,
Oregon. He brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2241, seeking the
removal of his career offender sentencing enhancement and a new sentence. For the reasons set
forth below, this case is dismissed for lack of jurisdiction.
BACKGROUND
On September 5, 1997, Petitioner pleaded guilty to Conspiracy to Possess with Intent to
Distribute Cocaine and Cocaine Base in violation of 21 U.S.C. §§ 841(a)(1) and 846, Carrying a
Firearm in Connection with a Drug Trafficking Offense in violation of 18 U.S.C. § 924(c), and
Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1) and 924(c). Resp’t Ex. 2
(ECF No. 19). At the time of sentencing, Petitioner had two prior convictions on his record that
the sentencing court found qualified him for the “career offender” designation under the United
States Sentencing Guidelines (“the guidelines”). The first qualifying prior conviction was for
possession with intent to sell marijuana on November 30, 1989, based upon the sale of 34 bags of
marijuana to undercover officers, in violation of Connecticut General Statute § 21a-277. Pet’r’s
Ex. A at 63-73; Resp’t Ex. 2 at 21. The second qualifying prior conviction was for possession
with intent to sell narcotics on December 13, 1989, based upon Petitioner’s possession of 54 bags
of cocaine at the time of his arrest, in violation of Connecticut General Statute § 21a-277. Id. He
faced a statutory maximum of life imprisonment. Id. at 47.

On April 20, 1998, the United

States District Court for the District of Connecticut sentenced Petitioner to 262 months
imprisonment on the conspiracy count, and an additional 60 months for the firearms counts, for a
total of 322 months. Id. In 2003, the District of Connecticut denied Petitioner’s § 2255 motion
to vacate his sentence, and in 2005 the Second Circuit affirmed. Resp’t Ex. 1 at 18-19; Allen v.

2 – OPINION AND ORDER

United States, Appeal No. 04-1232 (2d Cir. Nov. 1, 2005). Petitioner now seeks the removal of
his career offender sentencing enhancement via a § 2241 petition.
STANDARDS
It is well settled that “[a] motion under § 2255 is generally the exclusive remedy for a
federal prisoner who seeks to challenge the legality of confinement.” Muth v. Fondren, 676 F.3d
815, 818 (9th Cir. 2012). The one exception, referred to as the “escape clause,” provides that a
federal prisoner may challenge the legality of his confinement under § 2241 (usually reserved for
challenging the manner, location, or conditions of confinement) if his remedy under § 2255 is
inadequate or ineffective. Id. at 818; Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). A
§2255 remedy is “inadequate or ineffective” if a petitioner (1) makes a claim of actual innocence,
and; (2) has not had an “unobstructed procedural shot” at presenting his claim. Muth, 676 F.3d at
819 (internal quotations omitted); Marrero, 682 F.3d at 1192. The fact that a petitioner is now
procedurally barred1 from raising a claim does not mean his §2255 remedy was “inadequate or
ineffective.” Ivy v. Pontesso, 328 F. 3d 1057, 1060 (9th Cir. 2003).
“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v.
United States, 523 U.S. 614, 623 (1998). “To establish actual innocence for the purposes of
habeas relief, a petitioner must demonstrate that, in light of all the evidence, it is more likely than
not that no reasonable juror would have convicted him.” Alaimalo v. United States, 645 F.3d
1042, 1047 (9th Cir. 2011) (internal quotations omitted); Marrero, 682 F.3d at 1192-93. To

1A

prisoner may not bring a second or successive § 2255 motion unless “a panel of the
appropriate court of appeals” certifies that the motion contains: (1) newly discovered evidence
that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would have found the movant guilty
of the offense; or, (2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255.
3 – OPINION AND ORDER

determine whether a petitioner had an “unobstructed procedural shot to pursue his claim,” this
court considers two factors: “(1) whether the legal basis for petitioner’s claim ‘did not arise until
after he had exhausted his direct appeal and first §2255 motion;’ and (2) whether the law
changed ‘in any way relevant’ to petitioner’s claim after that first §2255 motion.” Harrison v.
Ollison, 519 F. 3d 952, 960 (9th Cir. 2008) (quoting Ivy, 328 F. 3d at 1061).
DISCUSSION
Petitioner does not allege that he is factually innocent of the predicate felonies used to
designate him as a “career offender” under the guidelines, nor does he contest the validity of his
state convictions. Instead, he claims to be “actually innocent” of the career offender designation,
itself. This argument has been squarely rejected by the Ninth Circuit as “purely legal” and
having “nothing to do with factual innocence.” See Marrero v. Ives, 682 F. 3d 1190, 1193-95
(9th Cir. 2012) (finding that incorrect designation as a career offender is a “purely legal” claim
that has nothing to do with factual innocence, and is not cognizable for purposes of qualifying for
§2255(e) escape hatch jurisdiction).

2

2

This Court’s exercise of escape hatch jurisdiction in

See also Bradford v. Tamez (In re Bradford), 660 F.3d 226, 230 (5th Cir. 2011) (per curiam)
(“[A] claim of actual innocence of a career offender enhancement is not a claim of actual
innocence of the crime of conviction and, thus, not the type of claim that warrants review under §
2241.”); Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011) (en banc) (“[T]he
savings clause does not authorize a federal prisoner to bring in a § 2241 petition a claim, which
would otherwise be barred by § 2255(h), that the sentencing guidelines were misapplied in a way
that resulted in a longer sentence not exceeding the statutory maximum.”), cert. denied, 565 U.S.
1116 (2012); Unthank v. Jett, 549 F.3d 534, 536 (7th Cir. 2008) (holding that actual innocence,
under the escape hatch, is factual innocence of the crime of conviction); Trenkler v. United
States, 536 F.3d 85, 99 (1st Cir. 2008) (noting that “[m]ost courts have required a credible
allegation of actual innocence to access the savings clause” and holding that the petitioner failed
to make such a showing where he did not claim actual innocence of the crime of conviction or
allege that he was sentenced to a greater term of imprisonment than authorized by statute);
Poindexter v. Nash, 333 F.3d 372, 382 (2d Cir. 2003) (“[W]hatever the merit of the contention
that the Guidelines were misapplied in the treatment of [the petitioner's] three undisputed prior
convictions, his claim that the three crimes should have been treated as one crime is not
4 – OPINION AND ORDER

Summers v. Feather, 119 F. Supp. 3d 1284, 1290 (D. Or. 2015), where the government conceded
that an improper sentence enhancement under the Armed Career Criminal Act (“ACCA”)
satisfied the actual innocence requirement, cannot save Petitioner from Marerro.
In summary, Petitioner cannot invoke this Court’s jurisdiction under § 2241 because the
law does not support concluding that he is “actually innocent” of the career offender designation
used to enhance his sentence.
CONCLUSION
Based on the foregoing, Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1) is
DENIED, and this proceeding is DISMISSED. The Court issues a Certificate of Appealability as
to whether 28 U.S.C. § 2241 habeas corpus jurisdiction is appropriate.
IT IS SO ORDERED.
DATED this

day of December, 2017.
__________________
Marco A. Hernandez
U.S. District Judge

cognizable as a claim of actual innocence.”); Okereke v. United States, 307 F.3d 117, 120–21 (3d
Cir. 2002) (holding that the petitioner could not qualify for the escape hatch where he merely
challenged his sentence and did not claim factual innocence of the crime of conviction); United
States v. Peterman, 249 F.3d 458, 462 (6th Cir. 2001) (holding that petitioners cannot qualify for
the escape hatch when they “do not argue innocence but instead challenge their sentences”).
5 – OPINION AND ORDER