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Keyon Leslie Phillips v. Paul Copenhaver

March 28, 2013

KEYON LESLIE PHILLIPS,
PETITIONER,
v.
PAUL COPENHAVER, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING THE PETITION FOR ) WRIT OF HABEAS CORPUS (DOC. 1) ) ORDER DECLINING TO ISSUE A ) CERTIFICATE OF APPEALABILITY ) AND DIRECTING THE CLERK TO CLOSE ) THE ACTION

Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on March 11, 2013 (doc. 9). Pending before the Court is the petition, which was filed on January 2, 2013.

I. Screening the Petition

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).

The Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b). Habeas Rule 4 requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

II. Background

Petitioner alleges he is an inmate of the United States Penitentiary at Atwater, California (USPA), who is serving a sentence of 327 months imposed on April 5, 2007, in the United States District Court for the Middle District of Georgia for a controlled substance offense pursuant to Petitioner's plea agreement. (Pet., doc. 1, 1.) Petitioner's sentence included a three-point enhancement for having committed a criminal offense against the laws of the state of Georgia -- namely, a violation of O.C.G.A. Criminal Code § 16-5-21.

Petitioner challenges the enhancement and argues he is actually innocent of the enhancement. Petitioner alleges that the offense, an assault, does not render him a career offender because the government has not demonstrated that the conviction was the result of intentional or knowing conduct, and therefore his crime does not qualify for the enhancement.

Petitioner further alleges that his offense did not qualify as a "crime of violence" under the United States Sentencing Guidelines. Further, Petitioner alleges he never caused any physical harm to his victim, the mother of his children; thus, his offense did not involve the use or attempted use of violent force that was capable of causing physical pain or injury to another person.

Petitioner asserts that the decision of Begay v. United States, 553 U.S. 137 (2008) entitles him to obtain relief in this proceeding pursuant to 28 U.S.C. § 2241 because it renders § 2255 inadequate or ineffective. He alleges he has challenged his conviction and sentence by a previous motion pursuant to § 2255 in the sentencing court, which was denied even though his victim swore in an affidavit that the assault was committed with a butcher knife, Petitioner never caused her or her children any physical harm, and she never filed charges alleging physical harm. (Doc. 1, 2-3.) Petitioner also asserts that he was coerced into pleading to the state offense. (Id. at 3.)

III. Legal Standards

A federal prisoner who wishes to challenge his conviction or sentence on the grounds it was imposed in violation of the Constitution or laws of the United States or was otherwise subject to collateral attack must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. 28 U.S.C. § 2255; Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). In such cases, the motion must be filed in the district where the defendant was sentenced because only the sentencing court has jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Tripati, 843 F.2d at 1163.

Generally, a prisoner may not collaterally attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2241. Stephens v. Herrera, 464 F.3d at 897; Tripati, 843 F.2d at 1162. In contrast, a federal prisoner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of ...


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