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Rubelo Estrada v. Michael Babcock


September 28, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of habeas corpus, purportedly pursuant to 28 U.S.C. § 2241. By order filed on February 24, 2012, the parties were directed to file concurrent briefing addressing the question of whether the savings clause could be applied to allow petitioner to proceed within this court's jurisdiction under § 2241. Respondent's brief was filed on March 23, 2012. Petitioner was granted an extension of time to submit his brief and appears to have filed one on March 29, 2012; he sought an additional extension of time, which the court liberally granted, and ultimately filed what appears to be a second response on May 23, 2012. After careful consideration, the undersigned concludes that this court lacks jurisdiction to proceed in this case.


The court has previously set forth the substance of the pending petition, as follows:

Petitioner contends that the instant petition is not a challenge to the federal government's evidence [against him].*fn1 Petition, p. 2. Petitioner states that he was convicted "under the Controlled Substance[s] Act, Title 21 U.S.C. [§]§841(a)(1)*fn2 (methamphetamine), 846[]*fn3 and 843(b),"*fn4 in a trial that "commenced in 2003" in the District of Idaho and was sentenced to a term of 360 months, pursuant to 21 U.S.C. § 851.*fn5 Id., at 3. Petitioner claims that the judgment was executed in deprivation of his Fourth, Fifth, Sixth and Tenth Amendment" rights "against the backdrop of the Ninth Amendment." Id. Petitioner evidently bases this petition on the recent Supreme Court ruling, Bond v. United States, ___ U.S.___, 131 Ct. 2355 (2011), wherein the high court found that a petitioner had standing to challenge her indictment under a federal criminal statute, 18 U.S.C. § 229, prohibiting possession or use of a chemical weapon on grounds that the statute intruded upon powers reserved to the states in violation of the Tenth Amendment. Petitioner attempts to predicate his challenge on an individual right under the Tenth Amendment to challenge the federal statutes as encroaching on state sovereignity. Id., at 1-50. Petitioner indulges in a lengthy version of the history of criminal laws from pre-revolutionary times through the colonial era and the history of the Ninth and Tenth Amendments. Id. Petitioner argues that he has Article III standing to challenge the federal statutes under which he was convicted, maintains that the conduct for which he has been convicted is local and should be left to local authorities and that under Idaho law the maximum term of imprisonment to which he would be sentenced "is barely half of his federal sentence." Id., at 29-31. Petitioner argues that the federal government has overreached in federalizing crimes that have long been state or local crimes. Id., at 32- 36, citing, inter alia, United States v. Lopez, 514 U.S. 549, 551, 561 n.3. 564, 115 S. Ct. 1624 (1995); Jones v. United States, 529 U.S. 848, 858, 120 S. Ct. 1904 (2000).

Order, filed on 2/24/12, pp. 2-3.


In the response, respondent references the "somewhat convoluted history" of this case but provides no copy of the docket or documents of the underlying criminal case. Respondent's brief, (hereafter, Rsp.), p. 1. The court herein takes judicial notice of the docket and electronically filed documents of petitioner's underlying Criminal Case No. 1:03-cr-094 in the District of Idaho.*fn6 The undersigned finds it helpful to place the instant petition in context by recounting the procedural background of petitioner's case as set forth in the Order, filed in the District of Idaho, on 7/03/08, dismissing petitioner's motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255.

Estrada was charged in the Indictment (Docket No. 1) in this multi-defendant case with one count of conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846. The Government subsequently filed an Information Pursuant to Title 21, United States Code, § 851 Regarding Increased Punishment by Reason of Prior Convictions (Docket No. 79 in the criminal case). [Footnote] 3][*fn7 ] The Government again charged Estrada in the Superseding Indictment (Docket No. 96) with the conspiracy count. Finally, the Government filed the Second Superseding Indictment (Docket No. 144) charging Estrada with the conspiracy count and an additional ten counts of using a telephone in commission of the conspiracy offense in violation of 21 U.S.C. § 843(b). The case proceeded to trial. Prior to the submission of the case to the jury, and at the Government's request, the Court dismissed three of the telephone counts against Estrada. The jury convicted Estrada of all remaining counts. Minutes and Form of Verdict (Docket Nos. 269 and 270). Estrada moved for a new trial alleging that the Court had committed structural error by allowing unredacted transcripts of telephone conversations between Estrada and co-Defendants to be given to the jury during its deliberations even though parts of the transcripts had not been read to the jury during trial. Motion for New Trial (Docket No. 273). The Court denied the motion. Order (Docket No. 303). Estrada then objected to being sentenced pursuant to the United States Sentencing Guidelines ("USSG" or "Guidelines") and to the increase in his statutory maximum from forty (40) years to life pursuant to 21 U.S.C. § 851. Sentencing Memorandum (Docket No. 315) and Supplemental Sentencing Memorandum (Docket No. 319). Overruling the objections, the Court sentenced Estrada pursuant to 4B1.1, the Career Offender Guideline, to a term of imprisonment of 360 months to be followed by 8 years of supervised release on the conspiracy count and to terms of imprisonment of 96 months to be followed by 4 years of supervised release on each of the telephone counts, all terms to run concurrently. Judgment (Docket No. 322).

Estrada timely appealed the denial of his motion for a new trial and the alleged unconstitutional imposition of his sentence. Because, while his appeal was pending, the United States Supreme Court decided United States v. Booker, 125 S. Ct. 738 (2005), effectively rendering the United States Sentencing Guidelines advisory, Estrada requested a remand for resentencing. The Ninth Circuit affirmed his conviction but remanded the case pursuant to Booker and United States v. Ameline, 409 F.3d 1073, 1083 (9th Cir. 2005)(en banc), for the limited purpose of determining whether the Court would have imposed a materially different sentence had the Guidelines been advisory. United States v. Estrada, No. 04-30336 (9th Cir. Nov. 18, 2005)(Docket No. 361). On remand, the Court, after considering the parties' resentencing memoranda and original sentencing memoranda, declined to resentence concluding that the sentence would not have been materially different under advisory Guidelines. Order (Docket No. 368).

Estrada again timely appealed arguing that the Court failed to provide him with an "appropriate explanation" for denying resentencing. However, the Ninth Circuit affirmed the sentence determining that the sentence comported with the directives of Ameline and was reasonable. United States v. Estrada, No. 06-30148 (9th Cir. Jan. 10, 2007)(Docket No. 375). Estrada thereafter timely filed the ... § 2255 Motion alleging (1) that his sentence on the conspiracy charge was above the statutory maximum, (2) that his sentence should be re-examined in light to Rita and Cunningham, (3) ineffective assistance of trial counsel, and (4) ineffective assistance of counsel on appeal.

Criminal Case No. 1:03-cr-094 (District of Idaho), Memorandum Decision And Order, filed on 7/03/08 (docket no. 379), pp. 5-8.

As noted, petitioner's § 2255 motion was dismissed in the July 3, 2008, Order, Criminal Case No. 1:03-cr-094 (District of Idaho), referenced immediately above. Thereafter, on December 2, 2008, the Ninth Circuit denied petitioner's motion for authorization to file a second or successive § 2255 motion, because petitioner had not made "a prima facie showing" of "newly discovered evidence, that if proven and viewed in light of the evidence as a whole would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found" that he was "guilty of the offense," nor had he made such a showing as to a previously unavailable "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court... ." Order, No. 08-74571, filed in the Ninth Circuit on 12/02/08. An identical order was entered by the Ninth Circuit on March 18, 2011. Order, No. 11-70122, filed in the Ninth Circuit on 3/18/11.*fn8


In the order directing concurrent briefing on the jurisdictional issue, the court set forth the following analysis:

Generally, a motion pursuant to § 2255 is the appropriate vehicle by which to challenge a conviction. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied, 488 U.S. 982 (1988), citing, inter alia, 28 U.S.C. § 2255. See also, Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) ("[i]n general, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention"), citing United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) ("holding that, in general, '[a] federal prisoner authorized to seek relief under section 2255 may not petition for habeas corpus relief pursuant to section 2241").

Importantly, the remedies pursuant to § 2255 are not inadequate simply because the claim would be dismissed under § 2255 for procedural reasons. Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999). Of critical importance here, only a sentencing court has jurisdiction over a § 2255 motion. 28 U.S.C. § 2255; Tripati, 843 F.2d at 1163.*fn9 If the petition is construed as a motion under § 2255, only the District of Idaho has jurisdiction. If the petition is correctly brought under § 2241 (to attack the execution of sentence as opposed to its legality), the district of incarceration, the Eastern District of California, and not the District of Idaho, is the proper place to bring the action. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000).

The Ninth Circuit has also held that because of the jurisdictional nature of the § 2255 inquiry, "a court must first determine whether a habeas petition is filed pursuant to § 2241 or § 2255 before proceeding to any other issue." Id.

Despite petitioner's protestations, he is attempting to invalidate his conviction, which is initially, at least, a § 2255 matter. The real issue becomes whether the § 2255(e) "savings clause" -- "unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention"-- could come into play, thereby permitting a § 2241 petition to be filed in its place. If such were permissible, this district, the district where petitioner is incarcerated, would be the proper place to bring the habeas petition.

Applications of the savings clause favorable to a petitioner/movant have been few and far between. "We have held that a motion meets the escape hatch criteria 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, 464 F.3d at 898 (9th Cir.2006) (internal quotation marks omitted)." Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008). In Stephens, jury instructions which became arguably errant after a Supreme Court decision were an insufficient basis for an actual innocence claim. In Harrison, a clarifying decision by the Supreme Court, arguably favorable to petitioner in the sense that his conduct would not have implicated a federal crime, decided after petitioner had filed several previous § 2255 motions did not satisfy the procedural impediment hurdle because petitioner could have raised the claim regardless of the decision at issue. But see Alaimalo v. United States, 645 F.3d 1042 (9th Cir. 2011).

Order, filed on 2/24/12, pp. 3-4.

In his initial responsive brief, petitioner turns back to his historical approach, harking back to the Magna Carta, but unfortunately does not specifically address the jurisdictional basis for the pending petition. Petitioner's response, filed on 3/29/12. In his second responsive brief, petitioner, after mirroring respondent's recounting of the procedural background of his case, appears to essentially reiterate his argument within his petition as to the merits of his claim, contending that "the interest of justice" in his case with regard to the imposition of his sentence should "over-ride the jurisdiction argument." Petitioner's response, filed on May 23, 2012, pp. 1-6. Petitioner also contends that the argument under Bond did not become available to him until after he filed his § 2255 motion. Id., at 5. This court is not at liberty to "override" the jurisdictional question. Although, as respondent concedes, Bond v. United States, 131 S. Ct. 2355, was decided on June 16, 2011, respondent's argument that petitioner should have been able to raise his Ninth and Tenth Amendment claims in his motion to vacate under § 2255, as no court decision precluded such claims, Rsp., pp. 5, 7, is not accurate.

The Ninth Circuit had long held, prior to the Bond decision, that "[o]nly states have standing to pursue claims alleging violations of the Tenth Amendment by the federal government." Oregon v. Legal Services Corp, 552 F.3d 965, 972 (9th Cir. 2009). See also Bond at 2361 citing Nance v. EPA, 645 F.2d 701, 716 (9th Cir. 1981). Thus, in the Ninth Circuit, as well as several other circuits, petitioner faced a wall of authority precluding his bringing a Tenth Amendment claim. It can hardly be said that petitioner "had an unobstructed procedural shot" in bringing his Tenth Amendment claim, the first threshold test to determine whether the § 2255 savings clause applies. The question then becomes: is petitioner's claim one of "actual innocence" to qualify for the savings clause.

Petitioner has not cited any authority to demonstrate that the federal Controlled Substances Act, Title 21 U.S.C. [§]§841(a)(1), under which he was convicted is unconstitutional.

In fact, as respondent accurately maintains, the Supreme Court has upheld the Act under the Commerce Clause. Rsp., p. 7, citing Gonzalez v. Raich, 545 U.S. 1, 125 S. Ct. 2195 (2005) (rejecting challenge raised under California Compassionate Use Act to the federal Controlled Substances Act). Moreover, a claim of legal innocence, such as petitioner makes here, does not equate with a claim of actual innocence. "'[A]ctual innocence' means factual innocence, not mere legal insufficiency.'" Bousley v. United States, 523 U.S. 614, 623-24, 118 S. Ct. 1604, 1611 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 2518-2519 [] (1992). In Sawyer, the Supreme Court noted that in Smith v. Murray, 477 U.S. 527, 106 S. Ct. 2661 (1986), the High Court had "emphasized that the miscarriage of justice exception is concerned with actual as compared to legal innocence... ." Sawyer v. Whitley, 505 U.S. at 339, 112 S. Ct. at 2519 [emphasis added]. While, as respondent concedes, petitioner has Article III and prudential standing, under the Tenth Amendment, to challenge the federal government's right to bring charges against him under the federal Controlled Substances Act, he has no present vehicle for doing so because § 2241 is not available to him to do so. The claim here can only be viewed in the successive § 2255 context, one for which this non-sentencing court has no jurisdiction.

Accordingly, IT IS ORDERED that the Clerk of the Court make a district judge assignment to this case.

IT IS RECOMMENDED that the petition be dismissed for lack of jurisdiction. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Courts order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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