The opinion of the court was delivered by: Michael J. SengUNITED States Magistrate Judge
PETITION FOR WRIT OF HABEAS CORPUS
FINDING AND RECOMMENDATION REGARDING MOTION TO DISMISS
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner filed the instant petition on July 1, 2010. (Pet., ECF No. 1.) Petitioner is serving a sentence, imposed by the United States District Court for the Middle District of Pennsylvania, of 248 months for conspiracy to distribute cocaine, distribution of cocaine, possession of a firearm in relation to a crime, and possession of a firearm by a convicted felon. (Mot. to Dismiss, Ex. A, ECF No. 17-1.) Petitioner asserts he is actually innocent of the convictions and seeks relief via 28 U.S.C. § 2241. (Pet. at 6.) Petitioner claims that his innocence is a result of due process violations and ineffective assistance of counsel. (Id. at 7.)
A federal prisoner who wishes to challenge the validity or constitutionality of his conviction or sentence must do so by way of a motion under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988). In such cases, only the sentencing court has jurisdiction. Id. at 1163. A prisoner may not collaterally attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir. 1991); Tripati, 843 F.2d at 1162. In contrast, a federal prisoner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).
Petitioner is attacking the conviction and sentence, not the manner, location, or conditions of the sentence's execution. Because Petitioner is challenging his conviction and sentence, he must pursue his claims in the sentencing court via a motion under 28 U.S.C. § 2255.
The Ninth Circuit has recognized a narrow exception allowing a federal prisoner authorized to seek relief under § 2255 to seek relief under § 2241 if the remedy by motion under § 2255 is "inadequate or ineffective to test the validity of his detention." Alaimalo v. United States, 636 F.3d 1092, 2011 U.S. App. LEXIS 3799, *6 (9th Cir. February 28, 2011), citing Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). "This is called the 'savings clause' or 'escape hatch' of § 2255." Id. Furthermore, § 2255 petitions are rarely found to be inadequate or ineffective. Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court's denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 F.2d at 1162-63 (9th Cir.1988) (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 (9th Cir.1956). The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).
Petitioner has not shown section 2255 is inadequate or ineffective. "A petition meets the escape hatch criteria where a petitioner '(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.'" Alaimalo v. United States, 2011 U.S. App. LEXIS 3799 at *6 (citing Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006)). "In other words, it is not enough that the petitioner is presently barred from raising his claim of innocence by motion under § 2255. He must never have had the opportunity to raise it by motion." Ivy v. Pontesso, 328 F.3d 1057, 1059-60 (9th Cir. 2003).
Here, as described by Respondent, Petitioner did file several post conviction petitions, including a Section 2255 petition, and several other motions. (See Mot. To Dismiss, Ex. A.) Petitioner raised claims nearly identical to those of the present petition in a Petition for Writ of Audita Querela in the middle district of Pennsylvania in 2009. (Id., Ex.B.) In denying the petition, the court noted the several post-conviction filings already attempted by Petitioner, including his habeas petition under section 2255. (Id.) The court also noted that the proper vehicle for such claims is a petition of habeas corpus under section 2255 but that leave of the Court of Appeals to file a second or successive petition was required. (Id.) Petitioner previously filed an application to file a second or successive motion for relief under § 2255, and it was denied by the Third Circuit Court of Appeals. (Id., Ex. C.)
Petitioner's actual innocence arguments are based on assertions and declarations which state that he was not part of a conspiracy and that supportive evidence was not presented at trial due to ineffective assistance of counsel. A claim of actual innocence for purposes of the "escape hatch" of § 2255 is assessed by the test stated in Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998), which in turn requires that the petitioner 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 895, 898. Petitioner has only presented factual allegations and a claim of ineffective assistance of counsel. He asserts that if his trial counsel had interviewed these witnesses, they would have testified to his innocence at trial. (Pet. at 8.) Petitioner was found guilty after a seven day jury trial. Even if the evidence proposed by Petitioner was favorable, Petitioner does not adequately explain why he was not able to present these claims by way of his § 2255 habeas corpus petition. He asserts that the affidavit evidence became available eight years after his § 2255 petition. (Response, p. 6, ECF No. 18.) Even though Petitioner may have not obtained the affidavits until eight years after his § 2255 petition, he does not explain how the evidence is newly discovered or was otherwise not obtainable for such a period of time. Petitioner's primary claim based on ineffective assistance of counsel rests on established Supreme Court law. Petitioner makes no showing why such a claim could not have been presented, and the evidence contained in the affidavits obtained, at the time of filing the § 2255 petition. As described in the Government's Response to Motion for Relief from Judgment, Petitioner has previously presented affidavits of witnesses which allege that he was not part of the conspiracy. (Mot. to Dismiss, Ex. C.)
Petitioner has not presented a sufficient showing that his remedy under § 2255 was inadequate or ineffective to test the validity of his detention. Accordingly, the Court recommends that the motion to dismiss be granted and ...