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Lewis v. Ponce

United States District Court, E.D. California

June 8, 2017

SEYMON LEWIS, JR. Petitioner,
v.
FELICIA PONCE, Respondent.

          FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. section 2241 based upon his claim of actual innocence, and he further invokes the “escape hatch” in section 2255 in support of his claim. ECF No. 1. Respondent has filed a motion to dismiss based on a lack of jurisdiction. ECF No. 22.

         INTRODUCTION AND BACKGROUND

         Factual Background According to Respondent's Motion to Dismiss, with which petitioner has raised no argument, the precharging course of events as follows:

On November 7, 2008, police officers in Portland, Oregon, were patrolling outside a bar known to be a hotbed of drug and gang activity.[1] They saw a blue Ford Taurus turn sharply into the bar's parking lot, but they did not see the car signal prior to the turn. . .
The officers made a traffic stop based on this turn-signal violation, which they believed violated Oregon Revised Statute section 811.335 (failure to signal continuously for not less than 100 feet before turning). . . . During the stop, Petitioner (the driver and sole occupant of the vehicle) admitted that he didn't have a driver's license. . . . A record check run at the scene confirmed that his license was suspended. . . .
Because Petitioner's license was suspended, Portland Police Bureau policy required officers to tow the vehicle and inventory its contents. . . . Police found six individually-wrapped bindles of cocaine base during the ensuring [sic] inventory search. . . . Petitioner also had $452 in cash on his person. . . . Officers issued Petitioner a citation for two separate traffic violations: (1) driving after suspension; and (2) the turn-signal violation. . . . The citation was later dismissed when one of the officers failed to appear at the state court hearing. . . .

         Petitioner was indicted for Possession with Intent to Distribute a Controlled Substance on December 10, 2008. Respondent's Exhibit 1 (Criminal Docket, United States District Court of Oregon, Portland).[2] According to the Court Docket, the indictment of petition was filed December 10, 2008, id. at 1, and he first appeared on December 29, 2001. Id. at 3. The language of the original indictment is important to the resolution of this petition. The copy of the indictment found in Exhibit 5, charges one count for, by title, “Possession with Intent to Distribute a Controlled Substance, ” but in the body of the document the following language appears: “On or about November 7, 2008, in the District of Oregon, the defendant, SEYMON LEWIS, JR., defendant herein, did knowingly and intentionally distribute five (5) grams or more” of a “substance containing a detectable amount of cocaine base in the form of ‘crack, . . .”. (Emphasis added.) Thus the title and the body of the document do not coincide. This fact is central to petitioner's claim of actual innocence as will become clear.

         On October 14, 2009, a Superseding Indictment was filed. Exhibit 8. This indictment again charged only one count titled “Possession with Intent to Distribute a Controlled Substance, ” and the body of Count 1 restated that charge of “knowingly and intentionally possess[ing] with the intent to distribute” a substance containing the aforementioned amount of crack found in the original indictment.

         On November 18, 2009, petitioner filed a Petition to Enter Plea of Guilty” and in this Motion he pleaded to “knowingly and intentionally possess[ing]with intent to distribute more than 5 grams of crack cocaine.” Exhibit 9 at 4. Petitioner stated he understood that his plea exposed him to a sentence of up to 20 years in prison plus forfeiture Id. Petitioner signed this document on November 18, 2009. Id. at 7. This action took place approximately two months after petitioner filed a September 15, 2009 Motion to Suppress that could have led to his release if granted, Exhibit 1 at ECF 25. That motion was, however, denied after hearing on October 6, 2009. Id. at ECF No. 27. The superseding indictment was filed on October 14, 2009, id. at ECF No. 28, and trial preparation began and continued until the first day of trial, November 16, 2009. Id. at ECF No. 53. The trial was arrested on its second day, November 18, 2009, after some witnesses were presented and some evidence entered into the record, when a time was set for entry of a plea later in the day. Id. at ECF No. 55. At the hearing that day, the Plea Petition and Plea Agreement signed by petitioner were presented, petitioner was found competent to enter his plea which was found to be knowing and voluntary, and the jury was excused. Id. at ECF No. 56. Petitioner was sentenced by the Court to 8 years incarceration in a judgment entered on February 5, 2010. Id. at ECF No. 63. A transcript of the hearing on petitioner's plea, which was held on January 29, 2010, id. at 62, was entered into the record on March 15, 2012. Id. at ECF No. 66.

         Petitioner participated in several efforts to alter the foregoing outcome including:

         1. A motion to reduce his sentence filed on November 15, 2012, id. at ECF No. 69, which was denied after hearing on December 17, 2012. Id. at ECF No. 77. The court later recounted that the ground for the denial was that Federal Rule of Civil Procedure 60(b), pursuant to which the Motion was filed, did not offer an avenue of relief from his final judgment. Id. at ECF No. 96, dated June 5, 2013.

         2. A motion to vacate or correct the judgment under 28 U.S.C. section 2255 was filed on November 15, 2012, ECF No. 69, [3] and denied at hearing on December 17, 2012. Id. at ECF No. 77.

         3. These denials of relief were appealed to the Ninth Circuit Court of Appeals on April 29, 2013. Id. at ECF No. 91. The court docket reflects that the appeal was dismissed by the Circuit Court, a certificate of appealability was denied, and all other pending motions were denied as moot on September 4, 2013. Id. at ECF No. 99. The mandate of the court with regard to this and an additional motion pursuant to 28 U.S.C. section 2105 for dismissal of the ...


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