UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
October 17, 2011
JOSEPH LEON PLUMMER, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Dolly M. Gee United States District Judge
ORDER SUMMARILY DISMISSING HABEAS PETITION AS DISGUISED AND SUCCESSIVE § 2255 MOTION
The Court will dismiss this putative 28 U.S.C. § 2241 habeas petition summarily because the face of the petition indicates that it is a disguised motion under 28 U.S.C. § 2255. Petitioner asserts challenges to his federal criminal conviction and/or sentence that may only be asserted in the sentencing court, the Western District of Texas, pursuant to § 2255. Petitioner expressly states that he has sought the Fifth Circuit's permission, as is required by law, to file a successive § 2255 motion in the sentencing court, but that the Fifth Circuit denied permission. His current resort to asserting the same challenges here, having relabeled them as a putative § 2241 petition, is improper.
Petitioner Joseph Leon Plummer is a federal prisoner housed in Adelanto, in this judicial district. In 2006, a federal jury in the Western District of Texas convicted him of firearms offenses. Based in part on Petitioner's prior criminal record, United States District Judge Walter S. Smith sentenced Petitioner to 300 months in prison. See docket in United States v. Plummer, No. 6:05-CR-00218-WSS-1 (W.D. Tex.). Petitioner appealed. The Fifth Circuit affirmed. 225 Fed.Appx. 318 (5th Cir. 2007).
In January 2008, Petitioner returned to the trial court with a § 2255 motion. Judge Smith denied it on August 8, 2008. See docket in United States v. Plummer, No. 6:05-CR-00218-WSS-1 (W.D. Tex.).
In October 2008, the Fifth Circuit issued a decision in another case, United States v. Constante, 544 F.3d 584 (5th Cir. 2008), that Petitioner believes supports a new challenge to his own conviction and/or sentence. Some three years after Constante, Petitioner sought the legally-required permission from the Fifth Circuit to present another § 2255 motion to Judge Smith, but the Fifth Circuit rejected that motion one month ago on August 3, 2011. See docket in In re Plummer, No. 11-50557 (5th Cir. Aug. 3, 2011).
Petitioner now turns to this Court with the same challenge that he wanted to present in the trial court, having re-labeled as § 2241 habeas petition.
28 U.S.C. § 2255 generally provides the sole procedural mechanism by which a federal prisoner may test the legality of his detention. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). That section bars courts from entertaining most habeas petitions where "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[.]" In light of this rule, the statute on its face appears to bar the present action. Section 2255 itself permits resort to a 28 U.S.C. § 2241 petition when a § 2255 motion is "inadequate or ineffective to test the legality of [the] detention." 28 U.S.C. § 2255. This clause is sometimes referred to as the "escape hatch" to § 2255's exclusivity provision. Lorentsen, 223 F.3d at 953.
Only rarely is § 2255's escape hatch available. A § 2255 motion cannot be viewed as "inadequate" merely because the sentencing court has denied relief on the merits. Id. Any contrary ruling would nullify the statute's gatekeeping provisions, and Congress then would have accomplished little in its attempts to limit federal collateral review in passing laws such as the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Triestman v. United States, 124 F.3d 361, 374-76 (2nd Cir. 1997) (discussing Congressional intent to narrow collateral attacks).
"Along with many of our sister circuits," the Ninth Circuit has explained, we have held that a § 2241 petition is available under the "escape hatch" 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.
Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (collecting cases).*fn1
Here, opening the "escape hatch" is unwarranted. Petitioner has had an unobstructed procedural shot at obtaining relief. Contrary to his assertions here, see Pet. at 3, the mere fact that Petitioner missed that shot -- that is, the fact that the Fifth Circuit denied his motion seeking leave to present a successive 28 U.S.C. § 2255 motion in the trial court -- does not somehow render the prior proceedings "inadequate or ineffective" for purposes of allowing a § 2241 "escape hatch" petition.
CONCLUSION For the foregoing reasons, the action is DISMISSED without prejudice to Petitioner's pursuit of relief in the Western District of Texas, the Fifth Circuit or the Supreme Court.