United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT THE COURT DISMISS
PETITION FOR WRIT OF HABEAS CORPUS (DOC. 24)
SHEILA
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
Petitioner
Eddie Rollerson is a federal prisoner proceeding with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. Respondent Andre Matevousian, Warden, United
States Penitentiary, Atwater, California, moves to dismiss
the petition as erroneously brought under § 2241 rather
than 28 U.S.C. § 2255. Because the U.S. Supreme Court
recently held that its decision in Johnson v. United
States, 135 S.Ct. 2551(2015), applies retroactively, the
undersigned agrees that Petitioner must bring his claims
pursuant to § 2255. Welch v. United States, 136
S.Ct. 1257 (2016). Accordingly, the undersigned recommends
that the Court dismiss the above-captioned petition for writ
of habeas corpus without prejudice to Petitioner's
advancing his claim in a § 2255 action filed in the
appropriate jurisdiction.
I.
Procedural and Factual Background
On
August 9, 2007, in the District Court for the Southern
District of Florida, Petitioner pleaded guilty to a single
count of being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e). On October 23, 2007, the trial court sentenced
Petitioner to 180 months in prison and a five-year term of
supervised release.
On July
22, 2013, Petitioner moved to vacate his sentence under
§ 2255. The Florida district court adopted the findings
and recommendations of the magistrate judge and denied the
motion on August 6, 2014.
On July
24, 2015, Petitioner, who was then incarcerated in the United
States Penitentiary, Atwater, filed the above-captioned
petition for writ of habeas corpus pursuant to § 2241 in
this district. Petitioner was subsequently relocated to the
Low Federal Correctional Institution, Yazoo City,
Mississippi.
II.
Retroactive Application of Johnson
A
felon's possession of a firearm is a crime punishable by
a prison term of up to ten years. 18 U.S.C. §§
922(g) and 924(a)(2). The Armed Career Criminal Act of 1984
(ACCA) increased that sentence to a mandatory fifteen years
to life sentence if the offender had three or more prior
convictions for a serious drug offense or violent felony. 18
U.S.C. § 924(e). The statutory definition of a violent
felony included, in the so-called "residual clause,
" any felony that "otherwise involves conduct that
presents a serious risk of physical injury to another."
18 U.S.C. § 924(e)(2)(B)(ii). In Johnson, the Supreme
Court held that the residual clause violated due process,
striking it down as unconstitutional under the
void-for-vagueness doctrine. Welch, 136 S.Ct. at 1260-61.
In his
§ 2241 petition, Petitioner argued that under Johnson,
he was entitled to relief from his sentence, which had been
enhanced under the residual clause of §
925((e)(2)(B)(ii). Petitioner reasoned that the effect of the
Johnson holding was to render Petitioner actually innocent
and entitled to § 2241 relief. Respondent opposed the
petition, contending that because Petitioner had not proven
that § 2255 is ineffective or inadequate to evaluate the
legality of his sentence, he was not entitled to § 2241
relief.
After
the parties had briefed their arguments, the U.S. Supreme
Court held that Johnson was retroactive in cases on
collateral review. Welch, 136 S.Ct. at 1268. As a result, the
parties' arguments have become moot. Because Petitioner
is now retroactively entitled to seek § 2255 relief from
his sentence, which was enhanced under §
924(e)(2)(B)(ii), an unconstitutional provision, the proper
avenue for relief is through a § 2255 motion in the
sentencing district.[1]Accordingly, the undersigned recommends
that the Court dismiss the above-captioned § 2241
petition, without prejudice to Petitioner's advancing his
claim in a § 2255 petition in the proper jurisdiction.
III.
Certificate of Appealability
A
petitioner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition, but may only appeal in certain circumstances.
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
The controlling statute in determining whether to issue a
certificate of appealability is 28 U.S.C. § 2253, which
provides:
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the ...