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Curtis Jerone Murphy v. Mike Babcock


November 20, 2012


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



Petitioner/movant, a federal prisoner proceeding pro se, has purportedly filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 although the application attacks a judgment made in United States District Court, Western District of Tennessee, Eastern Division. Petitioner/movant has consented to the jurisdiction of the undersigned. Docket # 3.

By order filed on August 13, 2012, petitioner/movant [hereafter, for the sake of simplicity, petitioner] was directed to show cause within twenty-eight days how there is any basis for this court's jurisdiction over this matter. Petitioner was also directed to provide an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee. Petitioner filed a response to the show cause order on September 10, 2012, and court records indicate that, as of September 11, 2012, the filing fee has been paid, thus discharging petitioner/movant's filing fee obligation. However, after careful consideration, the undersigned concludes that this court lacks jurisdiction to proceed in this case.

Petitioner was tried jointly before a jury with several co-defendants, and was sentenced to a total term of 230 months subsequent to his 2003 conviction for: possession of cocaine base with intent to distribute and aiding and abetting; possession of marijuana with intent to distribute and aiding and abetting; possession of a firearm during and in relation to a drug trafficking crime and aiding and abetting; and being a convicted felon in possession of a firearm shipped in interstate commerce. Petition, pp. 3, 6-7, 11.*fn1 As the court has previously set forth:

Petitioner appealed his conviction to the Sixth Circuit, which was affirmed in 2004; however, the matter was remanded for re-sentencing in light of United States v. Booker, [543 U.S. 220], 125 S. Ct. 738; thereafter, the same sentence was re-imposed in the Western District of Tennessee. Petition at 3, 11. Petitioner, on January 14, 2008, filed a motion for sentence reduction, pursuant to Title 18 U.S.C. § 3582(c)(2), and on August 18, 2008, the Western District Court reduced petitioner's sentence to 196 months. Id., at 12. Petitioner also filed a motion []to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the Western District of Tennessee, raising ineffective assistance of counsel, which was denied on November 13, 2008. Id., at 2.

In the instant petition/motion, petitioner seeks to raise the following grounds: 1) "ineffective assistance of counsel in failing to properly preserve challenges to all sentencing enhancements"; 2) "mer[e] presence of firearm is not enough to establish possession of firearm during and in relation to a drug trafficking crime"; and 3) "actual innocent [sic] of the crime." Petition, at 4.

Order, filed on 8/13/12 (docket # 4),p. 2.

The court has also provided the previous 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.*fn2 If the petition is construed as a motion under § 2255, only the Western District of Tennessee 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 Western District of Tennessee, 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 [that he] 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).

In this application petitioner avers that his counsel was ineffective for failure to preserve objections to his sentencing enhancements under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), Blakely v. Washington, 542 U.S. 961, 124 S. Ct. 2531 (2004), United States v. Booker/United States v. Fanfan, 543 U.S. 220, 125 S. Ct. 738 (2004). Petitioner's claim of actual innocence appears to be largely pretextual; nor does petitioner provide any rationale for why his claims could not have been brought in his earlier § 2255 motion in the Western District of Tennessee. Thus, even if this case is to be transferred to the Western District of Tennessee, it would appear to be a successive petition, but that would be a determination for the district court of conviction. (When a successive*fn3 petition has been filed, the district court has discretion to either transfer that petition to the court of appeals or dismiss the petition. United States v. Winestock, 340 F.3d 200 (4th Cir. 2003)(§ 2255 case); Robinson v. Johnson, 313 F.3d 128, 139-140 (3rd Cir. 2002)).

Order at docket # 4, pp. 2-4.

In his response to the show cause order, petitioner contends that he is actually innocent, has not had an unobstructed opportunity to bring that claim earlier and, in addition, he asserts that his petition meets the test set forth under Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604 (1998), which requires that petitioner demonstrate in light of all the evidence that it is more likely than not that no reasonable juror would have convicted him. See Reply Memorandum at docket # 6.

Petitioner's claim of innocence goes only as to his conviction on count three, possession of a firearm during and in relation to a drug trafficking crime and aiding and abetting, for which he is to serve a consecutive sentence of 60 months to his sentence to be served concurrently as to counts one, two and six (136 months for count one, 60 months for count two and 120 months for count six) for a total of 196 months. Petition, pp. 6-7, 11-12.

Petitioner contends that he is not guilty of having violated 18 U.S.C. § 924(c)(1)*fn4 in light of Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501 (1995), and that he could not bring his claim in another § 2255 motion because such a second or successive motion forecloses his ability to bring a statutory challenge. Docket # 6.

Petitioner, however, does not make a threshold showing of actual innocence in his claim that he could not be convicted under § 924(c) because there was no evidence showing anything beyond mere presence of a firearm which is not enough to establish possession of a firearm in relation to a drug trafficking crime. It is true that under Bailey, the United States Supreme Court held that "§ 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Bailey v. United States, 516 U.S. at 143, 116 S. Ct. at 505 [emphasis in original]. However, the Supreme Court has since recognized that the holding of Bailey has been superseded by amendment to that statute in 1998. Abbot v. United States, __ U.S. __, 131 S. Ct. 18 (2010).

The 1998 alteration responded primarily to our decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In proscribing "use" of a firearm, Bailey held, § 924(c)(1) did not reach "mere possession" of the weapon. Id., at 144, 116 S.Ct. 501. Congress legislated a different result; in the 1998 revision, "colloquially known as the Bailey Fix Act," the Legislature brought possession within the statute's compass. United States v. O'Brien, 560 U.S. ___, 130 S.Ct., at 2179 (2010) (internal quotation marks omitted).

Abbott v. United States, 131 S. Ct. at 25.

Thus, on the face of it, petitioner, convicted in 2003, long after the 1998 revision of § 924(c)(1), does not make a threshold showing that his conviction under that statutory provision was based on evidence that did not constitute a criminal offense. Further, petitioner is correct that under 28 U.S.C. § 2255(h), a second or successive motion may only be authorized by the appropriate circuit court of appeals if it should contain:

1) newly discovered evidence that, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

However, petitioner makes no showing on the basis of a pre-1998 incarnation of the statutory provision which he evidently seeks to challenge herein why he could not have brought such a challenge to his conviction/sentence in his original § 2255 motion ultimately denied in 2008.

Petitioner does not make the requisite showing to proceed with a § 2241 petition in this court under the § 2255(e) savings clause. The claim here can only be viewed in the successive § 2255 context, one for which this non-sentencing court has no jurisdiction.*fn5 That petitioner may not be authorized to proceed on such a petition is not a sufficient basis to proceed in this court under § 2241.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner/movant has discharged his filing fee obligation; and

2. The petition is dismissed for lack of jurisdiction.

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