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Gamboa v. Norwood

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


February 23, 2009

EDGAR MOSQUERA GAMBOA, PETITIONER,
v.
JOSEPH NORWOOD, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Dale S. Fischer United States District Judge

OPINION AND ORDER

On January 28, 2009, petitioner Edgar Mosquera Gamboa, a federal inmate confined in this judicial district, filed a purported petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging his convictions and sentence for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 and money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) on the following grounds: (1) petitioner is "actually and factually innocent" of money laundering under United States v. Santos, 128 S.Ct. 2020, 170 L.Ed. 2d 912 (2008) because he "never used any illegal profits for any purpose, proceeds were used to pay normal operating expenses"; and (2) petitioner is "actually and factually innocent" of his life sentences for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine because the district court made factual findings of the amount of drugs in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005) and its progeny, and his sentence should have been no more than 20 years since his offenses involved "only a 'DETECTABLE AMOUNT' of cocaine."

BACKGROUND

On September 8, 1993, in United States District Court for the Southern District of Texas case no. CR 93-0082,*fn1 a jury convicted petitioner*fn2 of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (count 1), aiding and abetting possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2 (counts 3 & 4), and aiding and abetting money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (count 5), and petitioner was subsequently sentenced to life in prison. The Fifth Circuit Court of Appeals affirmed petitioner's convictions and sentence in an unpublished decision filed August 15, 1995, and the Supreme Court denied certiorari on December 11, 1995. United States v. Gamboa, 66 F.3d 322 (5th Cir.) (unpublished decision), cert. denied sub nom., Palacios-Bastida v. United States, 516 U.S. 1032 (1995).

On July 9, 2001, petitioner filed his first motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 in the District Court for the Southern District of Texas, which denied the motion on April 16, 2003. The district court also denied petitioner's request for a certificate of appealability.

On April 15, 2008, petitioner filed a motion to modify or correct a sentence based on retroactive sentencing guideline amendments nos. 484 and 591, and on June 17, 2008, petitioner filed a second motion to modify or correct his sentence based on retroactive guideline amendment no. 505. On January 7, 2009, the district court denied these motions.

DISCUSSION

The Court, having reviewed the pending petition, has determined it is another motion to vacate, set aside or correct petitioner's sentence under 28 U.S.C. § 2255, rather than a habeas corpus petition under 28 U.S.C. § 2241. See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000)(per curiam) ("[A] court must first determine whether a habeas petition is filed pursuant to § 2241 or § 2255 before proceeding to any other issue."). In making this determination, the Court has considered whether the pending action comes within Section 2255's "savings clause," and, for the reasons discussed below, has determined it does not.

"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) (citations omitted), cert. denied, 549 U.S. 1313 (2007); Harrison v. Ollison, 519 F.3d 952, 955-56 (9th Cir.), cert. denied, 129 S.Ct. 254 (2008). By contrast, a habeas corpus petition under 28 U.S.C. § 2241 is the appropriate mechanism by which a federal prisoner challenges the manner, location or conditions of the execution of his sentence. Hernandez, 204 F.3d at 864. The distinction between a motion to vacate, set aside or correct a sentence under Section 2255 and a habeas corpus petition under Section 2241 affects not only the type of relief generally available, but also whether a particular district court has jurisdiction to hear the request. Id. at 865. Section 2255 motions must be heard in the district court in which the federal prisoner was convicted and sentenced, whereas habeas corpus petitions under Section 2241 may be heard in the district court in which the federal prisoner is confined. Id.

Although petitioner is currently confined in the Central District of California, and this Court has jurisdiction to hear a habeas corpus petition under Section 2241, the claims petitioner raises in this action directly challenge the legality of his convictions and sentence; thus, petitioner's claims are presumptively cognizable only in a Section 2255 motion to vacate sentence, which must be filed in the District Court for the Southern District of Texas. Nevertheless, Section 2255 has an "escape hatch" or "savings clause," which provides that "[a] federal prisoner may file a habeas petition under § 2241 to challenge the legality of a sentence when the prisoner's remedy under § 2255 is 'inadequate or ineffective to test the legality of his detention.'" Harrison, 519 F.3d at 956; Stephens, 464 F.3d at 897. The petitioner has the burden of demonstrating Section 2255 is "inadequate or ineffective." Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).

The "inadequate or ineffective" exception is "narrow[,]" Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.), cert. denied, 540 U.S. 1051 (2003); United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997), and "the general rule . . . is that the ban on unauthorized second or successive petitions does not per se make a § 2255 'inadequate or ineffective.'" Stephens, 464 F.3d at 898 (quoting Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) (quoting § 2255)); see also Ivy, 328 F.3d at 1059 ("§ 2255's remedy is not 'inadequate or ineffective' merely because § 2255's gatekeeping provisions prevent the petitioner from filing a second or successive petition. . . ." (citation omitted)). However, "a motion meets the escape hatch criteria of § 2255 'when a petitioner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.'" Harrison, 519 F.3d at 959 (citation omitted); Stephens, 464 F.3d at 898. "'To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.'" Stephens, 464 F.3d at 898 (citation omitted). To determine "whether a petitioner had an unobstructed procedural shot to pursue his claim, [the Court asks] whether petitioner's claim 'did not become available' until after a federal court decision." Harrison, 519 F.3d at 960 (quoting Stephens, 464 F.3d at 898). That is, the Court must consider: "(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, 519 F.3d at 960 (quoting Ivy, 328 F.3d at 1060-61).

In Ground One, petitioner bases his "actual innocence" claim on Santos, in which a deeply divided Supreme Court affirmed the Seventh Circuit's definition of the term "proceeds" in the money laundering statute, 18 U.S.C. § 1956(a)(1)(A)(i),*fn3 as net profits, rather than gross receipts, of an illegal gambling business. Santos, 128 S.Ct. at 2025-34. Based on this holding, petitioner claims he is "actually innocent" of his money laundering conviction because he "never used any illegal profits for any purpose, proceeds were used to pay normal operating expenses." Yet, since petitioner has provided absolutely no evidentiary support for this claim, he has not shown the savings clause applies to it. Stephens, 464 F.3d at 899; Redfield, 315 F.2d at 83.

In any event, Santos does not support petitioner's actual innocence claim. To the contrary, although the Supreme Court held "proceeds" means the net profits rather than the gross receipts of an illegal gambling business, five justices agreed that "Congress intended the term 'proceeds' to include gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales." Id. at 2032 & n.3 (Stevens, J., concurring);*fn4 see also id. at 2035-36 & n.1 (Alito, J., dissenting) (Five justices agree "the term 'proceeds' 'include[s] gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales.'" (citation omitted)). The petitioner's money laundering conviction comes within this class of cases. See United States v. Fleming, 287 Fed. Appx. 150, 155 (3d Cir.) ("Fleming asks for his conviction on this count to be reversed because the government failed to show, as the plurality in Santos would have required, that the 'proceeds' that Fleming laundered were profits, rather than gross receipts, from the drug conspiracy. However, as Justice Alito points out in his dissent, "five Justices agree with the position" that "the term 'proceeds' 'include[s] gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales.'" Santos, 128 S.Ct. at 2035 & n. 1 (quoting Justice Stevens's concurrence). Therefore, even if the government did not show that the money involved in Fleming's money laundering conviction was profits from the drug sales, his conviction on this count must stand because, as we have stated, the term 'proceeds' includes gross revenues for drug sales."), cert. denied sub nom., Robinson v. United States, 129 S.Ct. 477 (2008), and cert. denied, __ S.Ct. __, 2009 WL 56620 (2009). Thus, petitioner "has not made out a claim of actual innocence . . . [and] has not properly invoked the 'escape hatch' exception of § 2255 that would permit him to file a petition for habeas corpus under § 2241." Stephens, 464 F.3d at 899. Nor is it clear that Santos changed the law in any way related to petitioner's claim. Harrison, 519 F.3d at 960-61; Ivy, 328 F.3d at 1060-61.

In Ground Two, petitioner claims "actual innocence" under Booker. However, a Booker "claim is not, by itself, a claim of actual innocence." Stephens, 464 F.3d at 899. Rather, a Booker claim challenges petitioner's sentence, not his conviction; therefore, with regard to this claim, petitioner cannot show "'it is more likely than not that no reasonable juror would have convicted him.'"*fn5 Id. at 898; see also Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005) ("[B]ecause Padilla does not attack his conviction and his claim challenges only the validity of his sentence [under Booker and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004)], Padilla's § 2241 petition does not fall within the savings clause of § 2255. . . ."); Suarez v. Wrigley, 2009 WL 80381, *3 (E.D. Cal.) (federal habeas petitioner's claim that sentence imposed was in excess of statutory maximum failed to show Section 2255 was "inadequate or ineffective" since petitioner challenged only legality of his sentence and not his conviction and, therefore, did not show actual innocence).

For all these reasons, this Court finds the pending action is a motion to vacate sentence under 28 U.S.C. § 2255, and not a habeas corpus petition under Section 2241, and, as such, this Court does not have jurisdiction to consider petitioner's Section 2255 motion.*fn6 See 28 U.S.C. § 2255(a) ("A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." (emphasis added)). Thus, this action should be summarily dismissed for lack of jurisdiction under Local Rule 72-3.2.*fn7

ORDER

IT IS HEREBY ORDERED that the pending action be construed as a motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255 and, as such, Judgment shall be entered summarily dismissing the motion for lack of jurisdiction.

The Clerk of Court is ordered to serve this Opinion and Order and Judgment on petitioner.

PRESENTED BY: DATE: February 6, 2009

ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE


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