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Queen v. Shinn

United States District Court, C.D. California

February 17, 2017

Nicholas Queen
v.
David Shinn

          Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE.

          ORDER

         Proceedings: (In Chambers) Order to Show Cause Why this Action Should Not Be Dismissed for Lack of Jurisdiction

         I.

         BACKGROUND

         Following 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).[1] 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. 31, 1993).

         Petitioner 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.

         Since 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).

         On June 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 Dkt. 301.

         On February 6, 2017, Petitioner constructively filed[2] 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 retroactively). Id.

         II.

         DISCUSSION

         A. APPLICABLE LAW

         A 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).

         There 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 ...


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