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Seth Muth v. Dwight L. Fondren

April 3, 2012

SETH MUTH, PETITIONER-APPELLANT,
v.
DWIGHT L. FONDREN, WARDEN, SANDSTONE F.C.I.,
RESPONDENT-APPELLEE.



Appeal from the United States District Court for the District of Montana Jack D. Shanstrom, Senior District Judge, Presiding D.C. No. 1:09-cv-00118-JDS

The opinion of the court was delivered by: Graber, Circuit Judge:

FOR PUBLICATION

Argued and Submitted

January 10, 2012-Seattle, Washington

Before: Susan P. Graber, Raymond C. Fisher, and Johnnie B. Rawlinson, Circuit Judges.

ORDER

Petitioner Seth Muth appeals an order denying his request for post-conviction relief and declining to grant him a certificate of appealability ("COA"). Because no reasonable jurist would conclude that Petitioner has demonstrated actual innocence, we decline to issue a COA and we affirm the judgment of the district court.

In 2003, Petitioner pleaded guilty to using a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A). The district court for the District of Montana sentenced Petitioner to a five-year term for possession of methamphetamine with intent to distribute, plus a consecutive ten-year term for using a firearm in relation to an uncharged drug trafficking offense. Petitioner was initially incarcerated in Minnesota.

On December 10, 2007, the Supreme Court decided Watson v. United States, 552 U.S. 74 (2007). Watson abrogated our holding in United States v. Ramirez-Rangel, 103 F.3d 1501, 1506 (9th Cir. 1997), that a person who receives a firearm in trade for drugs "uses" the firearm for the purposes of § 924(c)(1)(A). Under Watson, "a person does not 'use' a firearm under § 924(c)(1)(A) when he receives it in trade for drugs." Watson, 552 U.S. at 83 (emphases added). Watson left undisturbed the Supreme Court's holding that one who supplies a firearm in exchange for drugs "uses" the firearm for the purposes of § 924(c). Id.; Smith v. United States, 508 U.S. 223 (1993).

More than a year after the Supreme Court issued the Watson decision, Petitioner filed a petition for a writ of habeas corpus in the district court for the District of Minnesota, where he was then incarcerated. See Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) ("[A] § 2241 petition must be filed in the district where the petitioner is in custody."). Petitioner relied on 28 U.S.C. § 2241. He argued that Watson rendered him "actually innocent" of violating § 924(c) and that he was therefore eligible for relief under the "escape hatch" of 28 U.S.C. § 2255.*fn1

The Minnesota district court concluded that Petitioner's filing was not properly brought under § 2241 and construed it as a disguised § 2255 motion. Recognizing that jurisdiction over § 2255 motions lies with the sentencing court, not the custodial district, Stephens, 464 F.3d at 897, the Minnesota district court transferred the case to the District of Montana. The Montana district court then processed the § 2255 motion. The court determined that Petitioner was not actually innocent, dismissed the motion on the merits, and declined to grant Petitioner's request for a COA.

Petitioner timely appeals, arguing that his petition was properly brought under § 2241 and should be granted. We review de novo. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003).

A. Habeas Petitions Under the Escape Hatch of § 2255

A motion under § 2255 is generally the exclusive remedy for a federal prisoner who seeks to challenge the legality of confinement. See Stephens, 464 F.3d at 897 ("The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241." (citation omitted)). "The one exception to the general rule is what we have called the 'escape hatch' of § 2255." Id. This lone exception permits a federal prisoner to file a ...


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