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Dushon Foster v. Hector Rios


December 6, 2011


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


The Court will dismiss this putative 28 U.S.C. § 2241 habeas petition summarily because the face of the petition, combined with judicially-noticeable information, indicates that it is an abusive, disguised motion under 28 U.S.C. § 2255. Petitioner asserts a challenge to his federal criminal sentence that may only be asserted in the sentencing court, the Southern District of New York, pursuant to § 2255. Indeed, as discussed below, it appears he did assert it there, unsuccessfully. His current resort to asserting such challenges here, having relabeled them as a putative § 2241 petition, is obviously improper.



Petitioner Dushon Foster, who is represented by counsel, is a federal prisoner housed in Atwater, California, in Merced County and, therefore, in the Eastern District of California. See 28 U.S.C. § 84(b). In 2003, a federal jury in the Southern District of New York convicted him of racketeering and weapons offenses. District Judge Naomi Reice Buchwald sentenced Petitioner to 18 years in prison. See generally docket in United States v. Foster (also listed as United States v. Portee), No. 01-CR-00450 NRB (S.D.N.Y); Pet. at 4 (specifying 18-year sentence).

Petitioner's principal argument here is that a portion of his sentence improperly exceeds the statutory maximum, in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Pet. at 8-9. (Briefly stated, Booker held that the Sixth Amendment partially limits the power of district courts to enhance sentences beyond Federal Sentencing Guidelines.) Petitioner repeatedly has made this argument before, in proper venues, each time without success.

He first did so on direct review. The Second Circuit largely affirmed, but it remanded for the trial court to determine whether Petitioner's sentence, which included two upward departures from the Guidelines, ran afoul of Booker. See United States v. Foster, 127 Fed.Appx. 537 (2d Cir. 2005). On December 13, 2005, Judge Buchwald issued a five-page opinion concluding that the original sentence was proper under Booker. See United States v. Foster, No. 01-CR-00450 NRB, 2005 WL 3434641 (S.D.N.Y. Dec. 13, 2005) (memorandum and order). Petitioner appealed again, but the Second Circuit affirmed on September 15, 2006. United States v. Foster, 196 Fed.Appx. 42 (2d Cir. 2006).

Over thirteen months passed. On October 26, 2007, Petitioner filed a 28 U.S.C. § 2255 motion. Judge Buchwald denied the motion and denied a Certificate of Appealability in a 14-page ruling on July 14, 2008. See docket in United States v. Foster, No. 01-CR-00450 NRB (S.D.N.Y) (docket entry # 297). The Second Circuit also rejected a Certificate of Appealability on April 2, 2009. Id. (docket entry # 310).

Another year and a half passed. On November 12, 2010, Petitioner filed what he called a motion seeking "a Writ of Error Coram Nobis and/or Audita Querela," challenging his sentence as improperly enhanced in violation of Booker doctrine. Id. (docket entry # 320). That motion initially was filed as a new action before effectively being consolidated with Petitioner's main criminal action. See docket in Foster v. United States, No. 01-CV-09440 NRB (S.D.N.Y) (motion is docket # 1). As in the current petition, Petitioner argued in that motion that his sentence exceeded the statutory maximum. See id. (motion) at 3-4. (For ease of reference, the Court has attached a copy of the Petition as Appendix A to this Order.) Specifically, Petitioner argued that his eight-year sentence on Count 1 improperly exceeded the statutory maximum three-year term for the underlying offense. He cited 18 U.S.C. § 1959(a)(6) (three-year maximum sentence "for attempting or conspiring to commit a crime involving . . . assault with a dangerous weapon") and United States v. McLeod, 251 F.3d 78 (2d Cir. 2001) as authority for reducing the sentence. In the current petition, Petitioner again attacks his eight-year sentence on Count 1 and again cites McLeod and 18 U.S.C. § 1959(a)(6). See Pet. at 9-10.

Judge Buchwald construed the coram nobis petition as another § 2255 motion. Because Petitioner already had sought such relief unsuccessfully and did not have the required Court of Appeals authorization for filing a successive § 2255 motion, see 28 U.S.C. §§ 2244(a), 2255(h), Judge Buchwald transferred the matter to the Second Circuit on December 16, 2010. See docket in United States v. Foster, No. 01-CR-00450 NRB (S.D.N.Y) (docket entry # 321). On May 23, 2011, the Second Circuit issued an order explaining (1) that Judge Buchwald "correctly construed" the coram nobis petition as a successive § 2255 motion, and (2) that "Petitioner acknowledges that he cannot meet the requirements for obtaining permission from this Court to file a successive § 2255 motion" and, in light of that shortcoming, had asked for a voluntary dismissal. The appellate court obliged and ordered the appeal dismissed voluntarily. Foster v. United States, No. 11-112 (2d. Cir., filed May 23, 2011).

Petitioner now presents the same challenge that failed in the trial court and Second Circuit as a § 2255 motion, having repackaged it as a 18 U.S.C. § 2241 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 and should not 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. The mere fact that Petitioner missed that shot -- that is, the fact that the Second Circuit denied his coram nobis petition, properly reconstrued as a successive § 2255 motion (and, in turn, as Petitioner's implicit application for leave to file a successive § 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. Moreover, even if Petitioner's argument here differed from his Booker arguments in the trial court and the Second Circuit, the fact remains that he could have made his current challenges in those courts. What the Second Circuit has refused to allow, namely a successive § 2255 motion, this Court cannot properly grant.



For the foregoing reasons, the action is DISMISSED without prejudice to Petitioner's pursuit of relief in the Southern District of New York, the Court of Appeals for the Second Circuit or the United States Supreme Court.

Appendix A:

Copy of Nov. 12, 2009 "Notice of Motion" (Coram Nobis petition) in Foster v. United States, No. 01-CV-09440 NRB (S.D.N.Y) (docket # 1)

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