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Burnley v. Copenhaver

United States District Court, Eastern District of California

December 10, 2014

WALTER R. BURNLEY, Petitioner,
v.
P. COPENHAVER, Warden, Respondent.

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1), FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE, OBJECTIONS DEADLINE: THIRTY (30) DAYS

BARBARA A. MCAULIFFE, UNITED STATES 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 November 14, 2 014.

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).

Here, Petitioner challenges his sentence of 262 years that was imposed in 2007 in the United States District Court for the Western District of Wisconsin. His sentence included time imposed for prior state convictions of crimes of violence. Petitioner argues that his prior state court convictions were not crimes of violence pursuant to 18 U.S.C. § 924(e), and thus he is actually innocent of the facts that warranted an enhanced sentence.

II. Background

Petitioner alleges that on November 21, 2006, in the United States District Court for the Western District of Wisconsin, he was convicted at a jury trial of four counts of bank robbery by intimidation in violation of 18 U.S.C. § 2113(a) for robbing multiple banks in April and May 2006. (Pet., doc. 1, 1-2.) On February 7, 2007, Petitioner was sentenced to 262 months in prison. In July 2008, the Court of Appeals for the Seventh Circuit affirmed his conviction in the course of a direct appeal in which Petitioner raised only the issue of the sufficiency of the evidence of intimidation. On December 2009, the sentencing court denied Petitioner's first motion pursuant to § 2255. On July 18, 2014, the Seventh Circuit denied Petitioner's motion to file a successive § 2255 motion, which Petitioner sought in order to raise a challenge to his 2007 sentence on the ground that pursuant to pursuant to Descamps v. United States, 133 S.Ct. 2276 (2013), his prior Wisconsin state convictions of battery and reckless injury should not have been considered crimes of violence under United States Sentencing Guidleines 4(B)1.1(B). (Id. at 2.)

III. Subject Matter Jurisdiction under 28 U.S.C. § 2241

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).

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 at 864; 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 ...


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