The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 18) ORDER REQUIRING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The instant petition was filed on October 18, 2012, challenging Petitioner's sentence. (Doc. 1). On November 7, 2012, the Court ordered Respondent to file a response to the petition. (Doc. 5). On March 11, 2013, Respondent filed the instant motion to dismiss the petition for lack of habeas jurisdiction. (Doc. 18). On May 6, 2013, Petitioner filed his opposition to the motion to dismiss. (Doc. 22).
The petition alleges that on December 19, 2006, Petitioner was sentenced to fifteen years in prison in the United States District Court for the District of Utah, as a result of his conviction for possession of a firearm and ammunition by a felon, 18 U.S.C. § 922(g)(1). (Doc. 1, p. 2).
Petitioner now brings this habeas petition, challenging his sentence, arguing as follows: (1) his sentence should not have been enhanced by the Armed Career Criminal Act ("ACCA") because Petitioner did not leave the institution from which he allegedly "escaped"; and (2) Petitioner's prior 2 state drug conviction is not a "serious drug offense" within the meaning of the ACCA. (Doc. 1, p. 3). 3
Respondent's motion to dismiss contends that, because Petitioner's claim challenges his 4 sentence, this Court lacks jurisdiction and any sentencing challenge must be brought as a motion 5 pursuant to 28 U.S.C. § 2255. The Court agrees. 6
A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). A federal prisoner who wishes to challenge the validity 9 or constitutionality of his conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); Thompson v. Smith, 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. 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. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980).
In contrast, a federal prisoner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).
Petitioner's allegations that the sentencing court should not have applied ACCA to Petitioner's case and that, in any event, Petitioner's prior state drug conviction is not a "serious drug offense" within the meaning of the ACCA, are clearly challenges to the sentence itself, not to the execution of the sentence.
However, the proper vehicle for challenging such errors is by a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, not by a habeas corpus petition. Nevertheless, a 2 federal prisoner authorized to seek relief under § 2255 may seek relief under § 2241 if he can show 3 that the remedy available under § 2255 is "inadequate or ineffective to test the validity of his 4 detention." Hernandez v. Campbell, 204 F.3d 861, 864-5 (9th Cir.2000); United States v. Pirro, 104 5 F.3d 297, 299 (9th Cir.1997) (quoting § 2255). The Ninth Circuit has recognized that this is a very 6 narrow exception. Id; Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003) (a petitioner must show actual 7 innocence and that he never had the opportunity to raise it by motion to demonstrate that § 2255 is 8 inadequate or ineffective); Holland v. Pontesso, 234 F.3d 1277 (9th Cir. 2000) (§ 2255 not inadequate 9 or ineffective because Petitioner misses statute of limitations); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court's denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) (same); Tripati, 843 F.2d at 1162-63 (9th Cir.1988) (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 (9th Cir.1956); see United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 2001) (procedural requirements of § 2255 may not be circumvented by invoking the All Writs Act, 28 U.S.C. § 1651). The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).
In his opposition to the motion to dismiss, Petitioner contends that he meets the requirements for the savings clause because he is factually innocent and has not had an unobstructed procedural shot at presenting his claims. (doc. 22, p. 2). Specifically, Petitioner contends that several of the decisions upon which he relies for his sentencing challenge were not decided until 2008 and 2009 and that, during that time period, Petitioner was confined to the administrative segregation unit within his prison, thus limiting his access to the prison law library and the assistance of other inmates. Petitioner contends that for those reasons his § 2255 motion, filed over a year after the one-year deadline had expired, was rejected as untimely. Thus, Petitioner reasons, he never had an unobstructed shot at raising his claims. Regarding actual innocence, Petitioner simply makes the conclusory assertion that he is innocent without providing any specific facts or evidence to support such a claim.
In Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003), the Ninth Circuit held that the remedy under a § 2255 motion would be "inadequate or ineffective" if a petitioner is actually innocent, but 2 procedurally barred from filing a second or successive motion under § 2255. Ivy, 328 F.3d at 1060-3 1061. That is, relief pursuant to § 2241 is available when the petitioner's claim satisfies the following 4 two-pronged test: "(1) [the petitioner is] factually innocent of the crime for which he has been 5 convicted and, (2) [the petitioner] has never had an 'unobstructed procedural shot' at presenting this 6 claim." Id. at 1060. 7
"In determining whether a petitioner had an unobstructed procedural shot to pursue his claim, 8 the Court must ask whether petitioner's claim 'did not become available' until after a federal court 9 decision." Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008), cert. denied __ U.S. __, 129 S.Ct. 254 (2008). "In other words, we 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 claim after that first § 2255 motion." Id., citing Ivy, 328 F.3d at 1060-1061.
In Ivy, the petitioner was convicted in 1993 in a Missouri district court of engaging in a continuing criminal enterprise. He filed a habeas corpus petition pursuant to § 2241 in the district court in Arizona where he was confined. He contended he was actually innocent because the indictment did not charge him with the requisite three offenses to sustain a conviction for a continuing criminal enterprise. Ivy, 328 F.3d at 1058. After an unsuccessful appeal, in 1995, 1997, and 1999, Ivy filed motions pursuant to § 2255. Id. The original motion was denied on its merits, while the second and third motions were denied as second and successive motions. Id. In 2000, Ivy filed his federal ...