United States District Court, E.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, AND DENYING ANY OTHER PENDING MOTIONS AS MOOT. (DOC. NOS. 1, 3)
SANDRA M. SNYDER, Magistrate Judge.
Petitioner Donald Terrell Rice 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. 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 his consent in a writing signed and filed by Petitioner on May 5, 2014. See 28 U.S.C. 636(c)(1); Local Rule 305(b). Pending before the Court is the petition, filed on March 3, 2014 (Doc. 1), and transferred to this Court from the United States District Court, District of South Carolina on April 22, 2014. See Rice v. Copenhave, 0:14-CV-0270-RBH, 2014 WL 1600409 (D.S.C. Apr. 21, 2014). Also before the court is Petitioner's Motion to Appoint Counsel filed February 4, 2014 (Doc. 3).
Petitioner is currently serving a 370-month sentence after pleading guilty on December 20, 1999, to violations of 18 U.S.C. §§ 1951(a), 924(c)(1), and 922(g) (1). See United States v. Rice, 7:99-CR-902-1 (D.S.C.). On April 6, 2001, Petitioner filed a 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence, which the Court denied. See Rice v. United States, 7:01-CV-1913-MBS (D.S.C.). In 2006, Petitioner filed a motion under § 2241 with the United States District Court, District of South Carolina, which the Court transferred to the Western District of Virginia where Petitioner was then incarcerated. See Rice v. United States, 9:06-CV-1741-MBS (D.S.C.). The Court dismissed Petitioner's previous claims, based on the uniform commercial code, as frivolous. See Rice v. O'Brien, 7:06-CV-00464-SGW (W.D.Va.).
In the instant case, Petitioner maintains that he is actually innocent of violating 18 U.S.C. § 922(g)(1) and that, subsequent to his first habeas action, there has been an intervening change in the law. In light of Miller v. United States, 735 F.3d 141 (4th Cir. 2013), Petitioner asks that his conviction under 18 U.S.C. § 922(g)(1) be vacated and that he be resentenced accordingly.
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, 117 S.Ct. 2059, 138 L.Ed.2d 481 (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 applicable to habeas actions brought under Section 2241. See Rule 1(b), 28 U.S.C. foll. § 2254. 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, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 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 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).
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. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). 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."); Stephens, 464 F.3d at 897 (same); Tripati, 843 F.2d at 1162 (same). In such cases, the motion must be filed in the district where the defendant was sentenced because only the sentencing court has jurisdiction. Hernandez, 204 F.3d at 864; 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. 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).
Here, Petitioner is challenging the validity and constitutionality of a federal conviction. Therefore, should the Petitioner wish to pursue his claims in federal court, the appropriate procedure would be to file a Section 2255 motion in the sentencing court.
On this basis, the Court concludes that the petition must be dismissed.
A. Savings Clause
By his petition, Rice argues that this Court has jurisdiction under Section 2241 because the remedy under a Section 2255 motion would be inadequate or ineffective. Although the Ninth Circuit has recognized a narrow exception allowing a federal prisoner authorized to seek relief under Section 2255 to seek relief under Section 2241, a petitioner may do so only if the remedy by Section 2255 motion 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. Section 2255 petitions are rarely found to be inadequate or ineffective. See, e.g., Aronson v. May, 85 S.Ct. 3, 5, 13 L.Ed.2d 6 (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 treatment do not render a § 2255 petition inadequate); see also Williams v. Heritage, 250 F.2d 390 (9th Cir. 1957); Hildebrandt v. Swope, 229 F.2d 582 (9th Cir. 1956). 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).
The Ninth Circuit has established two requirements in this circumstance, "[holding] that a § 2241 petition is available under the escape hatch' 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.
Petitioner is challenging the validity and constitutionality of a conviction imposed by a federal court. As the Court has already established, the appropriate procedure would be to file a motion pursuant to Section 2255 in the sentencing court, not a habeas petition pursuant to Section 2241 in this Court. Petitioner argues, however, that Section 2255 remedies are inadequate and ineffective because the sentencing court denied his previously filed Section 2255 motion, and would do so ...