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Dade v. Ives

United States District Court, C.D. California

April 7, 2015

JOHN ERNEST DADE, Petitioner,
v.
RICHARD B. IVES, Warden, [1] Respondent.

ORDER DENYING AND DISMISSING PETITION FOR LACK OF JURISDICTION

ROBERT J. TIMLIN, District Judge.

INTRODUCTION

On December 10, 2014, John Ernest Dade ("Petitioner") filed a "Federal Place Holder Petition, " ("Petition") (Docket Entry No. 1), seeking permission to file a timely Petition, pursuant to 28 U.S.C. § 2241, after he has pursued his challenges to the district court's dismissal of his amended Section 2255 motion before the Ninth Circuit Court of Appeals and the U.S. Supreme Court. Id. at 1, 8-22.[2] Petitioner, who is confined in the Central District of California, challenges the validity of the dismissal of his amended § 2255 motion by the United States District Court for the District of Idaho. Id . Petitioner claims that his due process rights were violated when the district court granted summary judgment "because [petitioner] did not directly respond, amend, rebut, or defend... [the government's motion for summary judgment]." Id. at 1.

On January 21, 2015, the Magistrate Judge issued An Order to Show Cause "why this action can proceed under § 2241 or why, in the alternative, it should not be transferred to the United States District Court for the District of Idaho." (Docket Entry No. 3). The Order noted that the claims raised in the instant Petition may only proceed pursuant to § 2255 and the only court with jurisdiction over this action is the District of Idaho, the sentencing court, and directed Petitioner to SHOW CAUSE no later than February 20, 2015 why this action could proceed under § 2241 or why, in the alternative, it should not be transferred to the United States District Court for the District of Idaho. Id.

Petitioner did not file any response to the Minute Order within the allotted time.

For the reasons discussed below, the Court finds that the Petition is a section 2255 motion over which this Court has no jurisdiction. The Court will therefore dismiss the Petition for lack of jurisdiction.

PROCEDURAL BACKGROUND

On September 16, 2002, Petitioner was convicted, following a jury trial in the United States District Court for the District of Idaho, of making threatening interstate communications, interstate stalking on February 18, 2001, use of a firearm in relation to a violent crime, and interstate domestic violence on October 20, 2000.[3] On August 31, 2006, Petitioner was resentenced to 336 months imprisonment following the Ninth Circuit Court of Appeals' judgment affirming his convictions and remanding for resentencing. On April 22, 2008, the Ninth Circuit affirmed Petitioner's convictions and the sentence imposed on August 31, 2006. See United States v. Dade, 275 Fed.Appx. 600 (9th Cir. 2008). On October 5, 2009, the United States Supreme Court denied a petition for writ of certiorari. Dade v. United States, 130 S.Ct. 321 (2009).

On May 16, 2010, Petitioner filed an amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 in the District of Idaho. On March 18, 2011, Respondent filed a motion for summary judgment after conducing the limited discovery ordered by the court. On December 16, 2011, the court denied the § 2255 motion and denied a certificate of appealability. (Pet. 8-22); See 2011 WL 6301123 (D. Idaho Dec. 16, 2011). On June 20, 2012, the Ninth Circuit denied a certificate of appealability. On January 13, 2014, the United States Supreme Court denied a petition for writ of certiorari, Dade v. United States, 134 S.Ct. 949 (2014), and on March 24, 2014, the United States Supreme Court denied a petition for rehearing. Dade v. United States, 134 S.Ct. 1580 (2014).

APPLICABLE LAW

A federal prisoner who contends that his or her conviction or sentence is subject to collateral attack "may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. "Generally, motions to contest the legality of a sentence must be filed under § 2255, 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) (citations and footnote omitted). A prisoner generally may not substitute a habeas petition under 28 U.S.C. section 2241 for a section 2255 motion.

An application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if 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, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255; see Stephens v. Herrera, 464 F.3d 895, 897-99 (9th Cir. 2006); Hernandez, 204 F.3d at 864-65.

"Under the savings clause of § 2255, however, a federal prisoner may file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is inadequate or ineffective to test the legality of his detention.'" Hernandez, 204 F.3d at 864-65; see also Stephens, 464 F.3d at 897. This "savings clause" exception to § 2255 exclusivity is a "narrow" exception. Ivy v. Pontesso, 328 F.3d 1057, 1059-60 (9th Cir. 2003); Mere lack of success in the sentencing court does not make the § 2255 remedy "inadequate or ineffective." Boyden v. United States, 463 F.2d 229, 230 (9th Cir. 1972). If the rule were otherwise, every ...


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