United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)
MICHAEL J. SENG, Magistrate Judge.
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner filed the instant habeas petition in this Court on April 21, 2014. He is currently incarcerated at United States Penitentiary Atwater.
On August 12, 2008, in the Middle District of Florida, in a written plea agreement, Petitioner pled guilty pursuant to one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(b)(1)(A)(ii), and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Norwood v. United States, 2010 U.S. Dist. LEXIS 78543, 1-2 (M.D. Fla. July 12, 2010). On October 2, 2008, the Court accepted Petitioner's guilty plea and adjudicated him guilty. Id . On November 25, 2008, the Court sentenced Petitioner to 120 months incarceration as to count one, and 60 months incarceration as to count two. Id.
As a condition of his plea agreement, Petitioner waived his right to appeal the conviction. However, on November 24, 2009, Norwood filed a 28 U.S.C. § 2255 motion raising the claims of ineffective assistance of counsel. Norwood v. United States, 2010 U.S. Dist. LEXIS 78543 at 3-4. Of specific note, Petitioner claimed that counsel was ineffective for advising him to waive his right to appeal when counsel was aware of a pending case, Johnson v. United States , 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), that raised a legal argument which might influence whether he would qualify as a career offender. Id . The court denied the motion claiming that Petitioner had "not shown that his trial counsel was ineffective for failing to predict the development of the law." Id.
In the instant petition, Petitioner argues that his prior conviction for simple battery was not a violent felony under the Armed Career Criminal Act ("ACCA"). He contends that he is actually innocent of the ACCA sentencing designation and should be released since his term for the underlying conviction has been served.
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), 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; rather, 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.
Further, 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 federal prisoner who wishes to challenge the validity 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). In such cases, only the sentencing court has jurisdiction. Id. 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. Hernandez v. Campbell , 204 F.3d 861, 865 (9th Cir. 2000) ("Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court."); 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 habeas corpus under 28 U.S.C. § 2241. Hernandez , 204 F.3d at 865. Here, Petitioner is challenging the validity and constitutionality of his conviction. Therefore, the appropriate procedure would be to file a motion pursuant to § 2255 and not a habeas petition pursuant to § 2241.
The Ninth Circuit has recognized a narrow exception allowing a federal prisoner authorized to seek relief under § 2255 to seek relief under § 2241 if the remedy by motion under § 2255 is "inadequate or ineffective to test the validity of his detention." Alaimalo v. United States , 636 F.3d 1092, 1096 (9th Cir. 2011), citing Harrison v. Ollison , 519 F.3d 952, 956 (9th Cir. 2008). "This is called the savings clause' or escape hatch' of § 2255." Id . Furthermore, § 2255 petitions are rarely found to be inadequate or ineffective. Aronson v. May , 85 S.Ct. 3, 5 (1964) (a court's denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati , 843 F.2d at 1162-63 (9th Cir. 1988) (a petitioner's fears of bias or unequal ...