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Censke v. Matevousian

United States District Court, E.D. California

March 30, 2017

THOMAS A. CENSKE, Petitioner,
v.
ANDRE MATEVOUSIAN, Respondent.

          FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 21)

         Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

         I. BACKGROUND

         Petitioner is currently incarcerated at the United States Penitentiary in Atwater, California. Petitioner was convicted after a jury trial in the United States District Court for the Western District of Michigan of four counts of mailing threatening communications, in violation of 18 U.S.C. § 876(c). Petitioner was sentenced to an imprisonment term of 120 months. (ECF No. 1 at 2).[1] On appeal, the United States Court of Appeal for the Sixth Circuit affirmed the convictions, but vacated the sentence and remanded for resentencing. United States v. Censke, 449 F. App'x 456, 458 (6th Cir. 2011). Following remand, the district court again sentenced Petitioner to an imprisonment term of 120 months, which the Sixth Circuit affirmed. United States v. Censke, 534 F. App'x 382, 386 (6th Cir.), cert. denied, 134 S.Ct. 807 (2013).

         Subsequently, Petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, which the United States District Court for the Western District of Michigan denied in 2014. In August 2015, Petitioner filed a motion to reconsider or amend the § 2255 motion, challenging the mental state required for his convictions under 18 U.S.C. § 876(c). Petitioner relied on Elonis v. United States, 135 S.Ct. 2001, 2012 (2015), which clarified the mental state requirement for convictions under a different threat statute, 18 U.S.C. § 875(c). The district court construed the motion to be an unauthorized second or successive § 2255 motion and transferred it to the Sixth Circuit, which denied authorization on July 1, 2016. See Censke v. Fox, 659 F. App'x 485, 486 (10th Cir. 2016) (setting forth the procedural history of Petitioner's various collateral attacks). Meanwhile, in November 2015, Petitioner filed a § 2241 habeas petition in the United States District Court of the Western District of Oklahoma, challenging his conviction based on Elonis. The district court dismissed the petition for lack of jurisdiction under § 2241, and the Tenth Circuit affirmed the dismissal on August 19, 2016. Censke, 659 F. App'x at 486-87.

         On September 26, 2016, Petitioner filed the instant federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1). On January 12, 2017, Respondent filed a motion to dismiss. (ECF No. 21). Petitioner has filed an opposition. (ECF No. 24).

         II. DISCUSSION

         A federal court may not entertain an action over which it has no jurisdiction. See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam). A federal prisoner may challenge the execution of his sentence by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241. Zavala v. Ives, 785 F.3d 367, 370 n.3 (9th Cir. 2015). A federal prisoner who wishes to challenge the validity or constitutionality of his federal conviction or sentence must do so by moving the court that imposed the sentence to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Alaimalo v. United States, 645 F.3d 1042, 1046 (9th Cir. 2011). “The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citations omitted).

         The instant petition challenges the validity of Petitioner's conviction. Therefore, the appropriate procedure would be to file a § 2255 motion in the court that imposed the sentence rather than a § 2241 habeas petition in this Court. However, § 2255(e)'s “escape hatch” or “savings clause” permits a federal prisoner to file a habeas corpus petition under § 2241 if the remedy under § 2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). A petitioner may proceed under § 2241 pursuant to the escape hatch or savings clause when the petitioner claims to be: “(1) factually innocent of the crime for which he has been convicted; and, (2) has never had an ‘unobstructed procedural shot' at presenting this claim.” Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003) (citing Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000)). The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).

         A. Unobstructed Procedural Shot

         The remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or because a remedy under that section is procedurally barred. See Ivy, 328 F.3d at 1060 (“In other words, it is not enough that the petitioner is presently barred from raising his claim of innocence by motion under § 2255. He must never have had the opportunity to raise it by motion.”). To determine whether a petitioner never had an unobstructed procedural shot to pursue his claim, the Court considers “(1) whether the legal basis for petitioner's claim ‘did not arise until after he had exhausted his direct appeal and first § 2255 motion;' and (2) whether the law changed ‘in any way relevant' to petitioner's claim after that first § 2255 motion.” Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (quoting Ivy, 328 F.3d at 1060-61). “An intervening court decision must ‘effect a material change in the applicable law' to establish unavailability.” Alaimalo, 645 F.3d at 1047 (quoting Harrison, 519 F.3d at 960). That is, an intervening court decision must “constitute[] a change in the law creating a previously unavailable legal basis for petitioner's claim.” Harrison, 519 F.3d at 961 (second emphasis added) (citing Ivy, 328 F.3d at 1060).

         Here, Petitioner contends that he never had an unobstructed procedural shot at presenting his Elonis claim. Elonis was decided after Petitioner exhausted his direct appeal and first § 2255 motion. Elonis concerned 18 U.S.C. § 875(c), which provides: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” The statute does not specify that a defendant must have any mental state with respect to these elements, but the Supreme Court held that there is an implicit mental state requirement, which “is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” Elonis, 135 S.Ct. at 2012.

         In the instant case, Petitioner was convicted under a different statute, 18 U.S.C. § 876(c), which provides in pertinent part:

Whoever knowingly so deposits or causes to be delivered . . . any communication . . . addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than five years, or both.

         Although § 876(c) contains an express mental state requirement with respect to the delivery element, it does not contain a mental state requirement with respect to the communication containing any threat to kidnap or to injure the person. In Elonis, the Supreme Court held that the mental state requirement applied to each of the statutory elements under § 875(c)-that the communication was transmitted and that the communication contained a threat. 135 S.Ct. at 2011. Therefore, applying Elonis to § 876(c), there is a mental state requirement with respect to the communication containing any threat to kidnap or to injure the person. See United States v. Twitty, 641 F. App'x 801, 802 n.1 (10th Cir. 2016) (finding, after the Supreme Court summarily vacated and remanded in light of Elonis, ...


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