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Ramirez v. Fox

United States District Court, C.D. California

December 12, 2014

MARCOS XAVIER RAMIREZ, Petitioner,
v.
JACK FOX, Warden, Respondent.

MEMORANDUM AND ORDER SUMMARILY DISMISSING PETITION

PHILIP S. GUTIERREZ, District Judge.

I.

INTRODUCTION

On December 4, 2014, petitioner Marcos Xavier Ramirez ("Petitioner"), a federal prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. § 2241 ("Petition"). Petitioner challenges his 1998 convictions for conspiracy to manufacture methamphetamine and possession with intent to distribute methamphetamine. Petition ("Pet.") (ECF 1) at 2. Petitioner sustained his convictions in the United States District Court for the District of Oregon ("District of Oregon"). Id.

Although not entirely clear, Petitioner appears to raise six grounds for relief. Petitioner's Supplemental Brief in Support of Petition ("Supplement") (ECF 2). Each of the six grounds are based on arguments related to Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013) in which the Supreme Court overruled its previous decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) and held any fact that increases the mandatory minimum sentence for a crime is an element of the criminal offense that must be submitted to the jury and proven beyond a reasonable doubt.

As Petitioner acknowledges, Petitioner filed a petition pursuant to 28 U.S.C. § 2255 in the District of Oregon challenging the same 1998 convictions ("First Petition"). See Pet. at 4. In the First Petition, Petitioner raised numerous arguments, including an argument that his constitutional rights were violated when the court sentenced him based on facts not proven to a jury beyond a reasonable doubt. Supplement at 44, 64 (Table of Contents from Supplemental Brief and Reply Brief in Support of First Petition). The First Petition was denied in September 2007. See Pet. at 4.

As discussed below, the instant Petition, filed under section 2241, is actually a "second or successive" section 2255 petition. Because Petitioner has not sought and obtained permission from the appropriate Court of Appeals to file a second or successive petition, this Court lacks jurisdiction and the Petition must be dismissed.

II.

DISCUSSION

Challenges to the legality of a federal conviction or sentence generally must be made in a motion to vacate sentence filed under 28 U.S.C. § 2255 in the sentencing court, while challenges to the manner, location, or conditions of a sentence's execution must be filed under 28 U.S.C. § 2241 in the custodial court. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Doganiere v. United States, 914 F.2d 165, 169-70 (9th Cir. 1990), cert. denied, 499 U.S. 940 (1991). Here, Petitioner does not purport to challenge "the manner, location, or conditions" of the execution of his sentence. Rather, Petitioner is contesting the legality of his detention by contending the trial court erred in sentencing him, in violation of the Supreme Court's holding in Alleyne.

As a general rule, "§ 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention." Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). A petitioner is generally limited to one motion under § 2255, and may not bring a "second or successive motion" unless it meets the exacting standards of 28 U.S.C. § 2255(h). United States v. Washington, 653 F.3d 1057, 1059 (9th Cir.2011). Pursuant to section 2255(h):

A second or successive motion must be certified as provided in [28 USC § 2244] by a panel of the appropriate court of appeals to contain -
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255(h).

To avoid the prohibition against second or successive § 2255 petitions, petitioners will often attempt to characterize their motions in a way that avoids the requirements of § 2255(h). See Washington, 653 F.3d at 1059. For example, petitioners will characterize their motions as petitions under section 2241, which a petitioner is permitted to file without obtaining authorization from the court of appeals. Id. However, a motion brought under section 2241 challenging the legality of a sentence is only proper when section 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255. This exception has been referred to as the "savings clause" or "escape hatch." Hernandez, 204 F.3d at 864 n.2. The Ninth Circuit has held that a section 2241 petition may be brought under the "savings clause" when a petitioner (1) makes a claim of actual innocence, and (2) has not had an "unobstructed procedural shot" at presenting that claim. See Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008), cert. denied, 129 S.Ct. 254 (2008); Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006).

Here, Petitioner purports to be making an "actual innocence" claim based on Alleyne. However, the Ninth Circuit has held that 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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) - i.e., the petitioner "must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." See Stephens, 464 F.3d at 898 (citing Bousley, 523 U.S. at 623); see also Lorentsen, 223 F.3d at 954. Here, Petitioner has not even purported to make the requisite evidentiary showing he is "actually innocent" of conspiracy to manufacture methamphetamine and possession with intent to distribute methamphetamine. Rather, at most, he is making a claim regarding the sufficiency of evidence supporting the sentencing enhancements applied in his case.

Moreover, Petitioner has failed to meet his burden of showing he has been denied an unobstructed procedural shot at presenting his actual innocence claim based on Alleyne. In Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003), cert. denied, 540 U.S. 1051 (2003), the Ninth Circuit noted: "[I]t is not enough that the petitioner is presently barred from raising his claim of innocence by motion under § 2255. He must never have had the opportunity to raise it by motion." Thus, if petitioner's actual innocence claim could have been raised during trial or on direct appeal, or in a § 2255 motion prior to the lapse of the one year limitation period, the fact that he may be procedurally barred from now raising it does not mean that § 2255's remedy is "inadequate or ineffective." See id. Here, Petitioner did, in fact, raise challenges to the evidence presented in support of the sentencing enhancements in the First Petition. Nor does it make any difference that petitioner is now also basing his claim on Alleyne as the Ninth Circuit has recently held Alleyne is not a "watershed" rule of criminal procedure and thus, it does not apply retroactively. Hughes v. United States, 770 F.3d 814, 818 (9th Cir. 2014).

For the foregoing reasons, the Court finds this case does not fall within the scope of section 2255's "savings clause." Thus, although filed under section 2241, the instant action is properly construed as a section 2255 motion in disguise. Because Petitioner previously filed a section 2255 motion and has not obtained permission from the Court of Appeal to file a second or successive petition, this Court lacks jurisdiction and the petition must be dismissed.

III.

CONCLUSION

Based upon the foregoing, this Court finds the instant petition to be properly construed as a motion to vacate sentence filed under 28 U.S.C. § 2255. Petitioner has not sought and obtained permission from the appropriate Court of Appeals to file a second or successive petition, thus, this Court lacks jurisdiction and the petition must be dismissed.

IT IS THEREFORE ORDERED that Judgment be entered summarily dismissing the Petition and this action with prejudice.


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