United States District Court, C.D. California
ORDER SUMMARILY DISMISSING HABEAS PETITION AS DISGUISED SECTION 2255 MOTION
MANUEL L. REAL, District Judge.
The Court will dismiss this putative 28 U.S.C. § 2241 habeas petition summarily. Petitioner improperly seeks to reassert a Speedy Trial Act claim that has been rejected repeatedly in the Eastern District of Pennsylvania, the Third Circuit and the Supreme Court.
BACKGROUND AND THE CURRENT PETITION
Petitioner Mark Green is a federal prisoner at Los Angeles, serving a lengthy sentence for identity theft and credit card fraud. Based on the delay between his January 24, 2008 Indictment in Philadelphia and his trial's commencement 648 days later, he asserts a violation of his Speedy Trial Act (18 U.S.C. § 3161) rights. A jury convicted him in November 2009. In April 2010, Petitioner moved to dismiss the Indictment and vacate his conviction based on this Speedy Trial Act argument, among others. See docket in U.S. v. Green, E.D. Pa. case no. 08-0044 (ECF 104). Over a year later in May 2011, District Judge Juan R. Sánchez denied the motion, explaining that "[l]ess than 70 days of [the post-Indictment delay] is counted for purposes of the Speedy Trial Act, while the remainder of the time falls within the Speedy Trial Act time exclusions enumerated in § 3161(h)." Ex. E to Pet. at 8; docket (ECF 131), U.S. v. Green.
Petitioner appealed, reasserting the Speedy Trial Act argument. See Ex. D to Pet. (Brief For Appellant) at 16-23. The Third Circuit rejected that argument and affirmed on March 19, 2013. Ex. F to Pet.; U.S. v. Green, 516 Fed.Appx. 113 (3d Cir. 2013). On June 13, 103, the Court of Appeals denied Petitioner's petition - again raising the Speedy Trial Act - for panel and en banc rehearing. The Mandate was issued eight days later on June 21, 2013.
Six months later on December 27, 2013, Petitioner returned to the Third Circuit to petition for a writ of mandamus, again based on the Speedy Trial Act. The Third Circuit denied the writ on February 19, 2014, noting that Judge Sánchez already "consider[ed] Green's Speedy Trial Act claim in some detail" and that the Third Circuit had "carefully examined" the same claim on direct review. See docket in In re Green, No. 13-4795 (3d Cir.) (no docket or ECF number available).
Petitioner sought certiorari from the United States Supreme Court, which denied relief on June 16, 2014 in its case number 13-8226. Green v. U.S., 134 S.Ct. 2818 (2014). (Petitioner's petition there is not readily available, but the Court surmises that the petition reasserted his Speedy Trial Act claim(s). Whether it did or not, more importantly, Petitioner had the opportunity to have done so.)
Undaunted, Petitioner returned to the Third Circuit for a third time on October 1, 2014 with a motion - filed in the direct-appeal case - to recall that court's Mandate, again based on the Speedy Trial Act claim. That motion remains pending, according to the Third Circuit's docket as viewed on January 29, 2015.
28 U.S.C. § 2255 generally provides the sole procedural mechanism by which a federal prisoner may test the legality of his detention. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). That section bars courts from entertaining most habeas petitions where "it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief[.]" In light of this rule, the statute on its face appears to bar the present action.
Section 2255, however, permits resort to a 28 U.S.C. § 2241 petition when a § 2255 motion is "inadequate or ineffective to test the legality of [the] detention." 28 U.S.C. § 2255. This clause is sometimes referred to as the "escape hatch" to § 2255's exclusivity provision. Lorentsen, 223 F.3d at 953.
The escape hatch rarely opens. A § 2255 motion cannot and should not be viewed as "inadequate" merely because the sentencing court has denied relief on the merits. Id. Any contrary ruling would nullify the statute's gatekeeping provisions, and Congress then would have accomplished little in its attempts to limit federal collateral review in passing laws such as the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Triestman v. ...