The opinion of the court was delivered by: Christina A. Snyder United States District Judge
PETITIONER'S MOTIONS FOR PETITIONER'S PETITION FOR RELIEF UNDER CORAM NOBIS, EX PARTE MOTION FOR EMERGENCY RELIEF, AND TO INVOKE THE COURT'S EQUITABLE AUTHORITY
On September 9, 2010, petitioner Raymond Bingham, a person in federal custody proceeding pro se, filed a motion for reconsideration of this Court's August 9, 2010 order, pursuant to Fed. R. Civ. P. 59(e). Specifically, petitioner raises two arguments. First, petitioner argues that a recent Second Circuit opinion has changed the law regarding increased concurrent sentences under 21 U.S.C. § 924(c)(1). Second, petitioner argues that he is entitled to a decreased sentence in light of the recent changes to the sentencing guidelines. The August 9, 2010 order denied Bingham's petition for writ of error coram nobis under 28 U.S.C. § 1651, filed April 9, 2010, challenging his 1991 sentence of 300-months. In the August 9, 2010 order, the Court found that the petition for writ of error coram nobis was inappropriate under the circumstances, and the Court treated that petition as a second or successive § 2255 motion.
Subsequently, on September 30, 2010, petitioner filed an ex parte motion for emergency relief under 18 U.S.C. § 3582(c)(2) in light of the reduction to the mandatory minimum sentence for petitioner's drug trafficking offense under the Fair Sentencing Act of 2010. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. The motion argued that the change in the mandatory minimum sentence makes petitioner eligible for immediate release. Additionally, on October 4, 2010, petitioner filed a motion to invoke the Court's equitable authority to reduce petitioner's sentence.
Petitioner was sentenced to 240 months for violations of 21 U.S.C. § 846 (conspiracy to distribute cocaine) and 21 U.S.C. § 841(a)(1) (possession with intent to distribute cocaine), and 60 months for violation of 18 U.S.C. § 924 (c) (carrying/using a firearm during and in relation to a drug trafficking crime).
This Court, pursuant to Federal Rule of Evidence 201, takes judicial notice of the records in a prior federal habeas corpus action brought by petitioner: (1) Bingham v. United States, case no. CR 91-00770 CAS ("Bingham I"). The records in Bingham I show that on October 10, 1997, petitioner filed his first federal habeas corpus petition challenging the same criminal judgment he challenges here. On November 10, 1998, judgment was entered denying the habeas petition on the merits and dismissing Bingham I. The petitioner did not appeal the judgment to the Ninth Circuit Court of Appeals.
A. Motion for Reconsideration and Concurrent Sentences under § 924(c)(1)
Petitioner has noted the circuit split created by United States v. Williams, 558 F.3d 166 (2d Cir. 2009), regarding an additional concurrent sentence under 18 U.S.C. § 924(c)(1) when there is already a minimum sentence for an underlying offense. Williams holds that a concurrent mandatory minimum sentence associated with a violation of § 924(c)(1) does not apply when there is a violation of another statute during the same course of conduct that carries a higher mandatory minimum sentence. Id. at 169-76. The Second Circuit found that the "except" clause of § 924(c)(1), which states "[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law," applies to any other criminal statute, not just § 924. Id. at 169-70. The Ninth Circuit has not yet ruled on the issue discussed in Williams. Petitioner also notes that the Supreme Court has granted certiorari in cases from the Third and Fifth Circuits that have reached a result that is contrary to Williams. See United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), cert. granted, --- U.S. ----, 130 S.Ct. 1284, --- L.Ed. 2d ---- (2010); United States v. Gould, 329 Fed. Appx. 569 (5th Cir. 2009) (nonprecedential decision), cert. granted, --- U.S. ----, 130 S.Ct. 1283, --- L.Ed. 2d ---- (2010). However, prior to any discussion on the circuit split, the Court must address whether there is jurisdiction to hear this petition.
1. Jurisdiction of the Petition
As the Court noted in its August 9, 2010 order, the petition is a second or successive motion under 28 U.S.C. § 2255. In general, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention. See United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). A petition may be brought under 28 U.S.C. § 2241 to challenge the manner, location, or conditions of a sentence's execution. Because petitioner challenges the imposition of an additional sentence, he is challenging the legality of his detention. However, a petition may also be brought under 28 U.S.C. § 2241 when a petition under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255 (2006); Hernandez v. United States, 204 F.3d 861, 864-65 (9th Cir. 2000). This clause in § 2255 is referred to as the "savings clause" or the "escape hatch." Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). Determination of under which section a petition is brought is essential to a district court's jurisdiction determination because § 2255 petitions are heard in the sentencing court while § 2241 petitions are heard in the custodial court. Hernandez, 204 F.3d at 865.
The Ninth Circuit has held that a petition meets the savings clause "when a petitioner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (internal quotation marks omitted). Here however, petitioner does not make a claim of actual innocence, nor could he, as there has been no change in the law regarding the petitioner's guilt or innocence of the underlying offenses.
2. Petitioner's § 2255 Petition
Thus, as indicated in the August 9, 2010 order, the April 9, 2010 petition is properly construed as a second and successive petition under § 2255 challenging petitioner's sentence. The petition raised claims that petitioner could have raised in Bingham I. Moreover, it plainly appears on the face of the petition that petitioner has not moved in the Ninth Circuit ...