United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
ORDER VACATING BRIEFING SCHEDULE ISSUED ON JUNE 7, 2014 (Doc. 6)
ORDER REQUIRING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS
JENNIFER L. THURSTON, Magistrate Judge.
Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner filed the instant federal petition on June 11, 2014, challenging Petitioner's 2000 conviction in the United States District Court for the Eastern District of Pennsylvania, and subsequent sentence, for conspiracy to commit robbery. (Doc. 1). Petitioner maintains that, subsequent to his conviction, the recent U.S. Supreme Court case of Rosamond v. United States, ___ U.S. ___ , 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), altered the requirement for participation in a conspiracy and that, as a result, Petitioner's conviction should be overturned. (Doc. 1).
When the Court originally screened the petition, Rosamond had just recently been decided. Because the Court initially concluded that, potentially, Rosamond might bring Petitioner within the "savings clause" of § 2255, the Court, on July 7, 2014, issued an order requiring Respondent to file a response. (Doc. 6). Respondent requested and received one sixty-day extension of time on September 5, 2014. (Doc. 20) After further reflection, and having the benefit of a multitude of cases that have cited Rosamond in the ensuing months, the Court has determined that Petitioner does not qualify for the "savings clause, " and, accordingly, the petition must be dismissed. Accordingly, the Court will withdraw the July 7, 2014 order establishing a briefing schedule.
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 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 allegation that the March 2014 decision by the United States Supreme Court in Rosamond v. United States should result in the setting aside of his conviction because the jury instructions in his trial did not comply with the reasoning of Rosamond is clearly a direct challenge to Petitioner's conviction, not to the execution of his sentence. Indeed, Petitioner concedes as much in his petition.
However, the proper vehicle for challenging such a mistake is a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, not a habeas corpus petition. Nevertheless, a federal prisoner authorized to seek relief under § 2255 may seek relief under § 2241 if he can show that the remedy available under § 2255 is "inadequate or ineffective to test the validity of his detention." Hernandez v. Campbell , 204 F.3d 861, 864-5 (9th Cir.2000); United States v. Pirro , 104 F.3d 297, 299 (9th Cir.1997) ( quoting § 2255). The Ninth Circuit has recognized that this is a very narrow exception. Id .; Ivy v. Pontesso , 328 F.3d 1057 (9th Cir. 2003) (a petitioner must show actual innocence and that he never had the opportunity to raise it by motion to demonstrate that § 2255 is inadequate or ineffective); Holland v. Pontesso , 234 F.3d 1277 (9th Cir. 2000) (§ 2255 not inadequate 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 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 procedurally barred from filing a second or successive motion under § 2255. Ivy , 328 F.3d at 1060-1061. That is, relief pursuant to § 2241 is available when the petitioner's claim satisfies the following two-pronged test: "(1) [the petitioner is] factually innocent of the crime for which he has ...