United States District Court, C.D. California
Present: The Honorable KENLY KIYA KATO, UNITED STATES
(In Chambers) Order to Show Cause Why this Action Should Not
Be Dismissed for Lack of Jurisdiction
a jury trial in the United States District Court for the
District of Maryland, Petitioner Nicholas Queen
(“Petitioner”) was found guilty of two counts of
bank robbery by intimidation under 18 U.S.C. § 2113(d),
two counts of armed bank robbery in violation of 18 U.S.C.
§ 2113(f), and two counts of carrying a firearm during
the commission of a crime of violence under 18 U.S.C. §
924(c). ECF Docket No. (“Dkt.”) 1 at 2; see
also United States v. Queen, 73 F.3d 359, 1995 WL 756347
*1 (D. Md. 1995). He was sentenced on September 30, 1994 to
a 562-month term of incarceration. Dkt. 1 at 2; see also
USA v. Queen, 1:93-cr-00366-WMN-1 (D. Md., filed Aug.
appealed his conviction and sentence to the United States
Court of Appeals for the Fourth Circuit. Queen, 73
F.3d 359. On December 21, 1995, Petitioner's conviction
was affirmed. Id.
1997, Petitioner has filed over a dozen pleadings challenging
his conviction and sentence in the sentencing and custodial
courts. See United States v. Queen, 93-cr-0366-WMN,
2012 WL 1107176, at *1 (D. Md. Mar. 30, 2012) (listing
cases). Petitioner's first Motion to Vacate pursuant to
28 U.S.C. § 2255 (“Section 2255”) was denied
and dismissed on the merits on May 8, 1997. See Queen v.
United States of America, 97-1184-HMN (D. Md. 1997).
21, 2016, the Fourth Circuit issued an Order granting
Petitioner authorization to file a successive Section 2255
motion. Queen, 1:93-cr-00366-WMN-1 at Dkt. 300. The
court found Petitioner “made a prima facie showing that
the new rule of constitutional law announced in Johnson
v. United States, 135 S.Ct. 2551 (2015), and held to
apply retroactively to cases on collateral review by
Welch v. United States, 136 S.Ct. 1257 (2016), may
apply to his case.” Id. Hence,
Petitioner's motion to vacate his 1994 conviction and
sentence pursuant to Section 2255 (“Maryland Section
2255 Motion”) was filed in the Maryland District Court
on June 21, 2016, where it is still pending. Id. at
February 6, 2017, Petitioner constructively
filed the instant pro se Petition for
Writ of Habeas Corpus (“Petition”) pursuant to 28
U.S.C. § 2241 (“Section 2241”) in this
Court, challenging his 1994 conviction and sentence. Dkt. 1,
Pet. As in his Maryland Section 2255 Motion, Petitioner
asserts the statute under which he was convicted and
sentenced contain the language, “crime of violence,
” which is unconstitutionally vague under the reasoning
of Johnson v. United States, 135 S.Ct. 2551, 192
L.Ed.2d 569 (2015) (holding the “residual clause”
of 18 U.S.C. § 924(e) was unconstitutionally vague) and
Welch v. United States, 136 S.Ct. 1257, 194 L.Ed.2d
387 (2016) (holding Johnson should be applied
petitioner challenging “the manner, location, or
conditions of a sentence's execution” must file a
petition for writ of habeas corpus under Section 2241 in the
custodial court. Harrison v. Ollison, 519 F.3d 952,
956 (9th Cir. 2008). On the other hand, Section 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 challenging “the legality of his
sentence” must file a motion to vacate his sentence
under Section 2255 and “[Section] 2255 motions must be
heard in the sentencing court.” Hernandez v.
Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000).
is, however, an exception to this general rule that a Section
2255 challenge to the legality of detention must be filed in
the sentencing court. Under the “escape hatch” of
Section 2255, a federal prisoner may challenge the legality
of detention in the custodial court if, and only if, the
remedy under Section 2255 in the sentencing court is
“inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e); Stephens v.
Herrera, 464 F.3d 895, 897 (9th Cir. 2006). A prisoner
may file under Section 2255's escape hatch in the
custodial court “when the prisoner ‘(1) makes a
claim of actual innocence, and ...