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Souza v. United States

United States District Court, C.D. California

December 1, 2014

MARTIN SOUZA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

Martin Souza, Petitioner, Pro se, Adelanto, CA.

For United States of America, Respondent: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA; Diana L Pauli, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Criminal Division - U.S. Courthouse, Los Angeles, CA.

HONORABLE OTIS D. WRIGHT, II, UNITED STATES DISTRICT JUDGE. SHERI PYM, UNITED STATES MAGISTRATE JUDGE.

MEMORANDUM AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

HONORABLE OTIS D. WRIGHT, II, UNITED STATES DISTRICT JUDGE.

I.

INTRODUCTION

On November 14, 2014, petitioner Martin Souza filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. § 2241 (" Petition"). Petitioner is a prisoner at the Federal Correctional Institution in Victorville, California, where he is serving a life sentence imposed by the United States District Court for the Northern District of Ohio for conspiracy to possess with intent to distribute cocaine. See Pet. at 2. In this Petition, petitioner raises two grounds for relief: his life sentence is illegal because one of his prior convictions does not qualify as a drug trafficking offense under the career offender provisions of the United States Sentencing Guidelines; and his due process rights were violated by the government's failure to provide him with pretrial or presentencing notice of intent to enhance his sentence under 21 U.S.C. § 851(a)(2), and by the trial court's failure to advise him in compliance with 21 U.S.C. § 851(b). Pet. Mem. at 5-18. Petitioner also argues that he may seek this relief by way of the instant § 2241 Petition because he qualifies for the escape hatch of 28 U.S.C. § 2255. Pet. Mem. at 2-5.

The instant § 2241 Petition is petitioner's sixth attempt to challenge the criminal judgment against him in this Court by way of a § 2241 petition or other petition. In case number CV 06-4949-SGL (FFM), petitioner filed a § 2241 petition, attacking his conviction and sentence imposed by the United States District Court for the Northern District of Ohio. This Court summarily dismissed that habeas petition on the ground that petitioner's claim may only be raised to the sentencing court in a § 2255 motion.

Next, in case number CV 11-1574-ODW (SP), petitioner filed a " Petition for a Redress of Grievances Under Amendment I of the Constitution of the United States, " attempting to use that vehicle to raise multiple claims attacking his conviction and sentence. The Court dismissed that petition for a redress of grievances without prejudice on the grounds that the relief petitioner sought could only be obtained by way of a motion under 28 U.S.C. § 2255 filed with the sentencing court, petitioner had previously brought such a motion before the United States District Court for the Northern District of Ohio, petitioner did not have permission to bring a second or successive § 2255 motion, and therefore there was no reason for the Court to recharacterize the petition as a § 2255 motion and transfer it to the Northern District of Ohio.

Third, in case number CV 12-4418-ODW (SP), petitioner filed another § 2241 petition attacking his conviction. The Court summarily dismissed that petition, again on the grounds that the relief petitioner sought could only be obtained by way of a motion under 28 U.S.C. § 2255 filed with the sentencing court, petitioner had previously brought such a motion before the United States District Court for the Northern District of Ohio, and petitioner did not have permission to bring a second or successive § 2255 motion.

Fourth, in case number CV 12-6096-ODW (SP), petitioner filed yet another § 2241 petition, raising the same claims attacking his conviction as he raised in case number CV 12-4418, and also raising a claim attacking his sentence. The Court again summarily dismissed that petition for the same reasons it dismissed the prior petitions.

Fifth, in case number CV 13-8410-ODW (SP), petitioner Martin Souza filed still another § 2241 petition, raising two claims attacking his sentence. The Court once again summarily dismissed that petition, once again for the same reasons it dismissed the prior petitions.

Just as petitioner had no basis to seek the relief he sought in a petition for a redress of grievances or in his prior § 2241 petitions filed in this Court, he has no basis to seek the relief he seeks here in this § 2241 Petition. As petitioner well knows from the Court's orders in his other cases, he can only seek such relief by way of a § 2255 motion filed in the United States District Court for the Northern District of Ohio. Although he argues otherwise, he has no legal justification for again trying to circumvent the rules by seeking such relief in this Court with a § 2241 petition. Accordingly, the instant Petition will be summarily dismissed without prejudice.

II.

PROCEDURAL HISTORY[1]

Petitioner was indicted on October 21, 1998 and found guilty by a jury on July 28, 1999 for conspiracy to possess with intent to distribute cocaine in case number CR 98-356 in the United States District Court for the Northern District of Ohio. Petitioner was sentenced on December 15, 1999 to a mandatory term of life imprisonment under 21 U.S.C. § 841(b)(1)(A) based on the amount of cocaine involved in his crime of conviction and his two prior felony drug convictions. U.S. v. Lopez, 309 F.3d 966, 970 (6th Cir. 2002).

On October 29, 1999, petitioner filed a petition pursuant to 28 U.S.C. § 2255 in the Northern District of Ohio, which was dismissed without prejudice as untimely. Petitioner then commenced his direct appeal process. On November 25, 2002, the Sixth Circuit Court of Appeals affirmed petitioner's conviction.

On June 19, 2003, petitioner filed a motion pursuant to 28 U.S.C. § 2255 in the Northern District of Ohio, which he amended on September 11, 2006. The motion was denied December 13, 2006, and the court declined to issue a certificate of appealability. Petitioner appealed this denial of the certificate of appealability to the Sixth Circuit on January 29, 2007. The Sixth Circuit construed the appeal as an application for a certificate of appealability and denied it on September 7, 2007.

On October 25, 2004, petitioner filed a petition for writ of mandamus in the Sixth Circuit Court of Appeals, which was denied on December 13, 2004.

On November 2, 2005, petitioner filed a petition for writ of mandamus in the Sixth Circuit Court of Appeals, which was denied on January 10, 2006.

On August 9, 2006, petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in this Court in case number CV 06-4949-SGL (FFM). The petition was dismissed August 25, 2006 for lack of jurisdiction. The Court noted that petitioner's claim that his conviction was invalid must properly be directed to the sentencing court in the form of a 28 U.S.C. § 2255 motion.

On October 16, 2007, petitioner filed a petition for writ of certiorari in the United States Supreme Court, which was denied on January 22, 2008.

On February 1, 2008, petitioner filed in the Northern District of Ohio a motion to vacate his judgment based on subsequent legal developments. This was denied on May 5, 2008. On May 19, 2008, petitioner filed a notice of appeal in the Sixth Circuit Court of Appeals, which was construed as an application for a certificate of appealability and denied on August 14, 2009.

Petitioner filed a petition for a redress of grievances in this Court on February 23, 2011 in case number CV 11-1574-ODW (SP). The Court dismissed that petition without prejudice on November 14, 2011.

On April 30, 2012 in case number 00-3073, petitioner filed a motion to recall the mandate of the Sixth Circuit Court of Appeals affirming his conviction. That motion was denied on June 20, 2012.

Meanwhile, petitioner filed a petition for writ of habeas corpus under § 2241 in this Court in case number CV 12-4418-ODW (SP) on May 21, 2012. The Court summarily dismissed that petition without prejudice on June 5, 2012.

Petitioner filed a petition for writ of habeas corpus under § 2241 in this Court in case number CV 12-6096-ODW (SP) on July 16, 2012. The Court summarily dismissed that petition without prejudice on July 24, 2012.

On October 26, 2012, in case number 12-4260 in the Sixth Circuit Court of Appeals, petitioner filed a motion for an order authorizing the district court to consider a second or successive § 2255 motion. The Court of Appeals denied that motion on July 1, 2013.

Petitioner filed a petition for writ of habeas corpus under § 2241 in this Court in case number CV 13-8410-ODW (SP) on November 14, 2013. The Court summarily dismissed that petition without prejudice on December 2, 2013.

Meanwhile, on July 26, 2013, in case number CR 98-356 in the Northern District of Ohio, petitioner filed a Motion for Verified Petition for Enforcement of the Contract Between the Parties in the Nature of a Motion to Vacate Judgment. In the same case on December 23, 2013, petitioner filed a Notice & Demand for Compensation re Securities. On March 3, 2014 in the same case, petitioner filed a Petition in the Nature of a Motion by Special Appearance for an Instant Hearing, but entitled the case People of the State of Ohio v. Martin Souza, with numerous third party defendants named. In an Order filed on March 5, 2014, that court noted that such a case does not exist, and stated it would accept no further frivolous filings by petitioner. Pet. Ex. A.

Petitioner filed the instant Petition under § 2241 in this Court on November 14, 2014.

III.

DISCUSSION

With the instant Petition, petitioner seeks to attack his sentence. Section 2255 allows a federal prisoner claiming that his sentence was imposed " in violation of the Constitution or laws of the United States" to " move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). " 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." Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam). A prisoner may not bring a second or successive § 2255 motion in district court without first seeking and obtaining certification from " a panel of the appropriate court of appeals." 28 U.S.C. § 2255(h); Harrison v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008). Only the sentencing court has jurisdiction over a § 2255 motion. Hernandez, 204 F.3d at 864; Tripati v. Henman, 843 F.2d 1160, 1163 (9th Cir. 1988).

Thus, the relief petitioner seeks here can only be obtained by way of a § 2255 motion filed in the United States District Court for the Northern District of Ohio. As noted above, petitioner has previously filed a § 2255 motion in the Northern District of Ohio. And petitioner has not received permission to bring a second or successive § 2255 motion. Indeed, he was denied such permission by the Sixth Circuit Court of Appeals on July 1, 2013.

There is an exception -- a " savings clause" or " escape hatch" -- to the general rule that claims such as those petitioner raises here must be brought in a § 2255 motion. See Harrison, 519 F.3d at 956; Hernandez, 204 F.3d at 864 n.2; Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). A federal prisoner may file a habeas petition under § 2241 to challenge the legality of a sentence " if, and only if, the remedy under § 2255 is 'inadequate or ineffective to test the legality of his detention.'" Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012) (citation omitted); see 28 U.S.C. § 2255(e).

The exception under § 2255(e) is " narrow" and will not apply " merely because § 2255's gatekeeping provisions, " such as the statute of limitations or the limitation on successive petitions, now prevent the courts from considering a § 2255 motion. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003); see also Lorentsen, 223 F.3d at 953 (ban on unauthorized successive petitions does not per se make § 2255 " inadequate or ineffective"); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curiam) (§ 2255 not inadequate or ineffective simply because the district court dismissed the § 2255 motion as successive and court of appeals did not authorize a successive motion). A petition meets the " escape hatch" criteria of § 2255(e) " when a petitioner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Harrison, 519 F.3d at 959 (internal quotation marks and citation omitted); accord Marrero, 682 F.3d at 1192. Petitioner here does not satisfy either of these criteria.

Petitioner is not claiming actual innocence of his crime of conviction. He is claiming that his sentence was improperly enhanced because the sentencing court committed errors in enhancing his sentence based on prior convictions. " In this circuit, a claim of actual innocence for purposes of the escape hatch of § 2255 is tested by the standard articulated by the Supreme Court in Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)." Marrero, 682 F.3d at 1193 (internal quotation marks, brackets, and citation omitted). There the Supreme Court held that " 'actual innocence' means factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623. The Ninth Circuit has " not yet resolved the question whether a petitioner may ever be actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch." Marrero, 682 F.3d at 1193. But the Ninth Circuit has held " that the purely legal argument that a petitioner was wrongly classified as a career offender under the Sentencing Guidelines is not cognizable as a claim of actual innocence under the escape hatch." Id. at 1195. As in Marrero, petitioner is not claiming here that he was actually innocent of his prior felony convictions for violating California Health & Safety Code § § 11351 and 11352. Instead, he is claiming that at least the § 11352 conviction did not qualify to make him a career offender, and that he was not given proper notice of the government's intent to seek an enhanced sentence under 21 U.S.C. § 851. See Pet. Mem. at 5-18. These legal arguments are not claims of actual innocence.

Moreover, petitioner has not demonstrated that he never had an unobstructed procedural shot to challenge his sentence. Petitioner effectively argues he does not now have an unobstructed procedural shot to raise these claims in a new § 2255 motion because of the March 5, 2014 Order in the Northern District of Ohio stating it would accept no further frivolous filings by petitioner. But just because there are obstacles to petitioner filing another § 2255 motion in the Northern District of Ohio does not mean he has never had an unobstructed procedural shot to bring the claims he seeks to bring here.

To demonstrate that he never had an " unobstructed procedural shot, " a petitioner must show that he never had an opportunity to raise the claim of actual innocence on appeal or in a § 2255 motion. See Harrison, 519 F.3d at 960. In making this determination, the court considers " (1) whether the legal basis for petitioner's claim did not arise until after he had exhausted his direct appeal and first § 2255 motion; and (2) whether the law changed in any way relevant to petitioner's claim after that first § 2255 motion." Id. (internal quotation marks and citation omitted).

Petitioner's first claim is largely the same as the third claim he raised in his prior petition in this Court in case number CV 12-6096, and as the claims he raised in his last petition in this Court in case number CV 13-8410. Once again, petitioner asserts that his sentence was improperly enhanced based on his prior conviction for violating California Health & Safety Code § 11352. But petitioner cites to no new facts and no change in Supreme Court law actually relevant to either of the claims here since his § 2255 motion was denied in 2006.

Indeed, petitioner did raise both of the claims he raises in the instant § 2241 Petition within Issue VII of his amended § 2255 motion filed in the Northern District of Ohio. See Amended Motion at 6-7, Case No. CV 03-1236 (N.D. Ohio), ECF No. 39. Petitioner directly raised the second substantive claim here, that he was not given proper notice of the § 851 enhancement. Id. Petitioner also raised the first claim in the context of arguing that California Health & Safety Code § 11352 should not be utilized for an enhancement under 21 U.S.C. § 851. Id. at 7. That petitioner raised the first claim in that context makes sense, since -- whether or not the sentencing court in fact found petitioner was a career offender -- the record reveals that petitioner's career offender status had no effect on his sentence. This is because petitioner received a mandatory life sentence under 21 U.S.C. § § 841(b)(1)(A) and 851 due to his two prior felony drug convictions. See Lopez, 309 F.3d at 970. And whatever the merits of petitioner's argument that his conviction under Health & Safety Code § 11352 does not qualify as a drug trafficking offense (or really a controlled substance offense) for career offender purposes, this argument is inapplicable to a § 851 enhancement. Under 21 U.S.C. § 841(b)(1)(A), a person convicted of a drug crime described therein involving five kilograms or more of cocaine, and who has two prior convictions for a felony drug offense, shall receive a mandatory life sentence, provided such prior convictions were charged and proven in accordance with 21 U.S.C. § 851. " The term 'felony drug offense" means an offense that is punishable by imprisonment for more than one year . . . that prohibits or restricts conduct relating to narcotic drugs . . . ." 21 U.S.C. § 802(44). Thus, this is a much broader definition than the definition of a controlled substance offense for career offender purposes. See U.S.S.G. § 4B1.2(b).

In short, it is clear that petitioner is not making a true actual innocence claim, he has had an " unobstructed procedural shot" at presenting his claims, he in fact presented his second claim directly and his first claim indirectly in a prior § 2255 motion, and in any event his first claim pertaining to career offender status is irrelevant to the sentence he received. Accordingly, petitioner's remedy under § 2255 was not " inadequate or ineffective" so as to permit the assertion of his instant claims in a § 2241 petition.

As with petitioner's prior § 2241 petitions filed in this Court, recharacterizing the Petition as a § 2255 motion and transferring it to the Northern District of Ohio would not be in the interest of justice because such a reconstrued motion would clearly be successive and therefore barred by § § 2255(e) and (h). Dismissal of the instant § 2241 Petition is therefore warranted.

IV.

CONCLUSION

IT IS THEREFORE ORDERED that Judgment be entered summarily denying the Petition and dismissing this action without prejudice.

JUDGMENT

Pursuant to the Memorandum and Order Summarily Dismissing Petition for Writ of Habeas Corpus, IT IS HEREBY ADJUDGED that the Petition is denied and this action is dismissed without prejudice.


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