United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE
BARBARA A. McAULIFFE, Magistrate Judge.
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. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on August 11, 2014.
I. Screening the Petition
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, 491 (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, patently frivolous or false, 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 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).
In the petition filed on August 11, 2014, Petitioner alleges that he is an inmate of the Taft Correctional Institution serving a sentence of 240 months imposed in 1999 for convictions of controlled substance offenses in the United States District Court for the District of Hawaii. (Pet., doc. 1, 1.) Petitioner appealed, raising issues concerning the suppression of evidence seized before his arrest and an Eighth Amendment challenge to his twenty-year mandatory minimum sentence. The judgment was affirmed by the Ninth Circuit Court of Appeals on April 14, 2000. He previously brought a motion pursuant to 28 U.S.C. § 2255 raising the ineffective assistance of counsel for failing to challenge a prior drug conviction with a sentence of only ten months in prison, but Petitioner does not allege the date of the § 2255 proceedings or any facts regarding the court's ruling. (Id. at 2, 14.)
Petitioner argues that his prior drug offense is no longer a felony drug offense because it was not punishable by more than one year in prison. He argues that he is actually innocent of offender information relied upon in sentencing pursuant to 21 U.S.C. § 851 because his prior drug offense did not qualify as a felony drug offense based on Descamps v. United States , 570 U.S. ___, ___, 133 S.Ct. 2276 (2013), a criminal appeal in which the Court rejected the use of a modified categorical approach to considering whether certain prior convictions with a single and indivisible set of elements were violent felonies within the meaning of the Armed Career Criminal Act.
II. Subject Matter Jurisdiction
A court will not infer allegations supporting federal jurisdiction; a federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears, and thus federal subject matter jurisdiction must always be affirmatively alleged. Fed.R.Civ.P. 8(a); Stock West, Inc. v. Confederated Tribes of the Colville Reservation , 873 F.2d 1221, 1225 (9th Cir. 1989). When a federal court concludes that it lacks subject matter jurisdiction, the court must dismiss the action. Arbaugh v. Y&H Corp. , 546 U.S. 500, 514 (2006); Moore v. Maricopa County Sheriff's Office , 657 F.3d 890, 894 (9th Cir. 2011).
Here, although Petitioner is challenging his conviction and sentence, Petitioner argues that he is entitled to proceed pursuant to 28 U.S.C. § 2241 because § 2255 is inadequate and ineffective due to his actual innocence of the crimes and the absence of an unobstructed procedural shot at presenting his claim.
A. Inadequate or Ineffective Remedy
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. § 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 habeas corpus under 28 U.S.C. § 2241. Brown v. ...