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Jerecki v. Milusnic

United States District Court, C.D. California

April 29, 2014

THOMAS JERECKI, Petitioner,
v.
L.J. MILUSNIC, Warden, Respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

On March 5, 2014, Petitioner filed a "Memorandum of Law in Support of Petitioner's Motion to Petition for a Writ of Habeas Corpus, Pursuant to 28 U.S.C. §2255 By a Person in Federal Custody" ("Petition"). The petition challenges Petitioner's 1998 career offender sentence of 262 months. Petitioner received this sentence in the United States District Court for the Southern District of West Virginia upon pleading guilty to conspiracy to possess with intent to distribute and to distribute methamphetamine. See United States v. Thomas Jerecki, United States District Court for the Southern District of West Virginia case number 6:98-CR-00111-1.[1] The Petition appears to contend that: (1) Petitioner was not informed, prior to his plea, that he would receive a career offender sentence; (2) the sentencing court failed to impose a three point sentence reduction for acceptance of responsibility; and (3) Petitioner's counsel allegedly rendered ineffective assistance at sentencing by assertedly: (a) failing to contest the career offender sentence; and (b) failing to seek a sentence reduction for acceptance of responsibility. Petitioner also requests an order holding the Petition in abeyance pending the hoped-for passage of certain proposed federal legislation.

Petitioner previously challenged his sentence on direct appeal to the United States Court of Appeals for the Fourth Circuit. See United States v. Jerecki, 199 F.3d 1329, 1999 WL 982048 (4th Cir. 1999) (unpublished disposition). In this appeal, Petitioner argued: (1) Petitioner assertedly was not informed, prior to the plea, that he faced a career offender sentence; and (2) Petitioner allegedly was entitled to a three point reduction for acceptance of responsibility. See Petition, p. 6; see also Brief of Appellant Thomas Jerecki filed August 17, 1999, in United States Court of Appeals for the Fourth Circuit case number 98-4917, reproduced at 1999 WL 33614323. The Court of Appeals for the Fourth Circuit rejected Petitioner's arguments and affirmed the sentence. See United States v. Jerecki, 199 F.3d 1329, 1999 WL 982048 at *1.

In 2000, Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. section 2255 in the United States District Court for the Southern District of West Virginia.[2] On June 6, 2001, a Magistrate Judge issued proposed findings and recommended the denial of the motion. On September 21, 2001, the District Court issued an Order adopting the Magistrate Judge's findings and denying the motion. The United States Court of Appeals for the Fourth Circuit affirmed this denial, and the United States Supreme Court denied certiorari. See United States v. Jerecki, 30 Fed.App'x 97 (4th Cir.), cert. denied, 537 U.S. 848 (2002).

DISCUSSION

A federal prisoner who contends that his or her conviction or sentence is subject to collateral attack "may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. "Generally, motions to contest the legality of a sentence must be filed under § 2255, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court." Hernandez v. Campbell , 204 F.3d 861, 864 (9th Cir. 2000) (citations and footnote omitted). A prisoner generally may not substitute a habeas petition under 28 U.S.C. section 2241 for a section 2255 motion.

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255; see Stephens v. Herrera , 464 F.3d 895, 897-99 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007); Hernandez v. Campbell , 204 F.3d at 864. Here, it appears Petitioner has applied for, and has been denied, section 2255 relief in the sentencing court.

"Under the savings clause of § 2255, however, a federal prisoner may file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under section 2255 is inadequate or ineffective to test the legality of his detention.'" Hernandez v. Campbell , 204 F.3d at 864-65; see also Stephens v. Herrera , 464 F.3d at 897. This "savings clause" exception to section 2255 exclusivity is a "narrow" exception. Ivy v. Pontesso , 328 F.3d 1057, 1059-60 (9th Cir.), cert. denied, 540 U.S. 1051 (2003); United States v. Pirro , 104 F.3d 297, 299 (9th Cir. 1997).

Mere lack of success in the sentencing court does not make the section 2255 remedy "inadequate or ineffective." Boyden v. United States , 463 F.2d 229, 230 (9th Cir. 1972), cert. denied, 410 U.S. 912 (1973); see Tripati v. Henman , 843 F.2d 1160, 1162-63 (9th Cir.), cert. denied, 488 U.S. 982 (1988). If the rule were otherwise, every disappointed prisoner/movant incarcerated in a district different from the sentencing district could pursue a repetitive section 2241 petition in the district of incarceration.

Similarly, neither the enforcement of the statute of limitations nor the enforcement of restrictions on successive 2255 motions renders the section 2255 remedy "inadequate or ineffective" within the meaning of the statute. See Moore v. Reno , 185 F.3d 1054, 1055 (9th Cir. 1999), cert. denied, 528 U.S. 1178 (2000) (dismissal of a prior section 2255 motion as successive does not render the section 2255 remedy "inadequate or ineffective"); Gilbert v. United States , 640 F.3d 1293, 1308 (11th Cir. 2011) (en banc), cert. denied, 132 S.Ct. 1001 (2012) (dismissal of earlier section 2255 motion as successive does not render the section 2255 remedy "inadequate or ineffective"); Hill v. Morrison , 349 F.3d 1089, 1092 (8th Cir. 2003) ("a § 2255 motion is not inadequate or ineffective' merely because: (1) § 2255 relief has already been denied, (2) the petitioner has been denied permission to file a second or successive § 2255 motion, (3) a second or successive § 2255 motion has been dismissed, or (4) the petitioner has allowed the one year statute of limitations and/or grace period to expire.") (citations, internal brackets and quotations omitted); Cradle v. U.S. ex rel. Miner , 290 F.3d 536, 539 (3d Cir. 2002) ("Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255") (citations omitted); Robinson v. United States , 2011 WL 4852499, at *2 (C.D. Cal. Oct. 12, 2011) (savings clause does not apply merely because the statute of limitations "now prevents the courts from considering a section 2255 motion"); cf. Ivy v. Pontesso , 328 F.3d at 1060 ("[I]t is not enough that the petitioner is presently barred from raising his claim... by motion under § 2255. He must never have had the opportunity to raise it by motion.").

A federal prisoner may file a section 2241 petition under the savings clause if the prisoner "(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Marrero v. Ives , 682 F.3d 1190, 1192 (9th Cir. 2012), cert. denied, 133 S.Ct. 1264 (2013) (citation and internal quotations omitted). "[T]o establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States , 523 U.S. 614, 623 (1998) (citation and quotations omitted). "Actual ...


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