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Gowdy v. Gill

United States District Court, Eastern District of California

January 9, 2015

JAMES EDWARD GOWDY, Petitioner,
v.
A. GILL, Respondent.

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

I.

BACKGROUND

Petitioner is presently incarcerated at the Federal Correctional Institution in Mendota, California. In the instant petition filed on December 3, 2004, Petitioner challenges his 2009 conviction and sentence in United States District Court for the Northern District of Mississippi for being a felon in possession of ammunition. See United States v. Gowdy, Case No. 3:08-cr-00167-WHB-JCS-l (S.D.Miss. June 19, 2009).[1] He was sentenced under the Armed Career Criminal Act ("ACCA"). Petitioner appealed to the Fifth Circuit Court of Appeals, and the judgment was affirmed on January 29, 2010. See United States v. Gowdy, 364 Fed.App'x 61, 2010 WL 445458 (Jan. 29, 2010). Petitioner's petition for writ of certiorari was denied by the United States Supreme Court on June 1, 2010. See Gowdy v. United States. 560 U.S. 946, 130 S.Ct. 3372, 176 L.Ed.2d 1258 (2010).

Petitioner then filed a motion to vacate, set aside or correct the sentence with respect to this conviction pursuant to 28 U.S.C. § 2255 in the Northern District of Mississippi, which was denied on January 5, 2011. Petitioner's appeal was dismissed by the Fifth Circuit Court of Appeals on July 15, 2011. See Gowdy v. United States, No. 11-60303 (5th Cir. July 15, 2011).

A review of the Court's dockets reveals that Petitioner has filed petitions for § 2241 relief in the Eastern District of Texas and this Court. On November 8, 2011, Petitioner's first federal petition for writ of habeas corpus pursuant to 28 U.S.C. 2241 was denied by the Eastern District of Texas in Gowdy v. Gill 2011 WL 5439068 (E.D.Tex. November 8, 2011). On October 24, 2012, Petitioner's federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 was denied by this Court in Gowdy v. Gill 2013 WL 5289310 (E.D.Ca. October 24, 2012). On September 18, 2013, the Ninth Circuit denied Petitioner's request for a certificate of appealability. See Gowdy v. Gill no-12-17465, ECF No. 11. Petitioner's petition for writ of certiorari was denied by the United States Supreme Court on October 6, 2014.

II.

DISCUSSION

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 federal 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); see also Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006), cert, denied, 549 U.S. 1313 (2007); Thompson v. Smith, 719 F.2d 938, 940 (8th Cir. 1983)=; In re Dorsainvil 119 F.3d 245, 249 (3rd Cir. 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. In general, 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 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 in the district where the petitioner is in custody. See Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir.2000) (per curiam); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990); 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).

"The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241." Stephens, 464 F.3d at 897 (citations omitted). Therefore, the proper vehicle for challenging a conviction is a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255.

Nevertheless, a "savings clause" exists in § 2255(e) by which a federal prisoner may seek relief under § 2241 if he can demonstrate the remedy available under § 2255 to be "inadequate or ineffective to test the validity of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting § 2255); see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a very narrow exception. See Ivy v. Pontesso, 328 F.3d 1057, 59 (9th Cir.) (as amended), cert, denied, 540 U.S. 1051 (2003). The remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or because a remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964) (finding that a prior § 2255 motion is insufficient to render § 2255 inadequate); Tripati, 843 F.2d at 1162-63 (holding that 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).

The Ninth Circuit has acknowledged that petitioners may proceed under Section 2241 pursuant to the "savings clause, " when the petitioner claims to be: "(1) factually innocent of the crime for which he has been convicted; and, (2) has never had an 'unobstructed procedural shot' at presenting this claim." Ivy, 328 F.3d at 1059-60 (citing Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir.2000)); see ...


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