United States District Court, E.D. California
THOMAS A. CENSKE, Petitioner,
ANDRE MATEVOUSIAN, Respondent.
FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S
MOTION TO DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS
CORPUS (ECF NO. 21)
is a federal prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
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). 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).
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.
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).
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).
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).
Unobstructed Procedural Shot
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).
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
instant case, Petitioner was convicted under a different
statute, 18 U.S.C. § 876(c), which provides in pertinent
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.
§ 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