Petitioner, a federal prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Petitioner commenced this action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Therein, he alleges that he was tried and convicted in the United States District Court for the Northern District of Georgia in 1989 for conspiracy to manufacture methamphetamine. On February 4, 1990, that court denied his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Pet. at 2.)
In his petition before this court, petitioner asserts the following two claims: (1) the government exceeded its authority when it indicted him for conspiracy; and (2) his alleged criminal conduct took place before the new conspiracy law took effect and therefore he should have been charged under the old conspiracy statute. (Pet. Attach. at 1-4.)
I. The Court Lacks Jurisdiction "[I]n order to determine whether jurisdiction is proper, a court must first determine whether a habeas petition is filed pursuant to § 2241 or § 2225 before proceeding to any other issue." See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). Here, although petitioner filed the instant petition on a § 2241 habeas form, he is attempting to challenge the legality of his conviction, not the manner, location, or conditions of the execution of his sentence. Generally, a federal prisoner contesting the legality of his conviction or sentence must file a motion pursuant to 28 U.S.C. § 2255 in his sentencing court, which in this case would be the United States District Court for the Northern District of Georgia. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003) ("In general, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention."); Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000) (same).
However, § 2255 contains an "escape hatch" or "savings clause" that provides: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if 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, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. (emphasis added)
A prisoner may invoke a court's jurisdiction under § 2241 if he can show that the remedy provided under § 2255 is "inadequate or ineffective" to test his incarceration. See Alaimalo v. U.S., 645 F.3d 1042, 1047 (9th Cir. 2011). This exception, however, is a narrow one. For example, § 2241 is not available to a petitioner simply because a court of appeals refuses to certify a second or successive petition under the provisions of § 2255. See Ivy, 328 F.3d at 1059. A petitioner may only proceed under § 2241 if he claims to be: "(1) factually innocent of the crime for which he has been convicted; and (2) has never had an 'unobstructed procedural shot' at presenting this claim." Id. at 1060.
In this case, petitioner has failed to demonstrate that the remedy provided under § 2255 is "inadequate or ineffective" in his case. Even if this court liberally construes the pending petition as stating a claim for actual innocence, petitioner does not claim that he was denied a reasonable opportunity to present such a claim to the sentencing court. In determining whether petitioner had an "unobstructed procedural shot" to pursue an actual innocence claim, this 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 claims after that first § 2255 motion." Alaimalo, 645 F.3d at 1047 (quoting Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008)) (internal quotation marks omitted).
Here, petitioner does not argue that there has been any material change in the applicable law in his case. Moreover, as the Ninth Circuit has explained, "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, 328 F.3d at 1060. Petitioner acknowledges that he filed a § 2255 motion in the United States District Court for the Northern District of Georgia where he was sentenced, which that court denied. Thus, petitioner has had an unobstructed opportunity to raise his claims in the sentencing court. Accordingly, this court concludes that because petitioner has failed to show that § 2255 provides an "inadequate or ineffective" remedy, he is not entitled to invoke this court's jurisdiction under 28 U.S.C. § 2241.
II. The Petition Will Be Dismissed
As noted above, the United States District Court for the Northern District of Georgia, as the sentencing court, has jurisdiction to hear petitioner's § 2255 motion. However, the interests of justice would not be served by transferring this action to that court under the circumstances presented. See 28 U.S.C. § 1631; see also Hernandez, 204 F.3d at 865, n.6 (28 U.S.C. § 1631 allows transfer of § 2255 motion to cure want of jurisdiction). Specifically, even if petitioner had filed the instant motion as a § 2255 motion in the United States District Court for the Northern District of Georgia, that court would lack jurisdiction over the motion as well because petitioner must first obtain authorization from the Eleventh Circuit to file a "second or successive" § 2255 ...