United States District Court, E.D. California
SEYMON LEWIS, JR. Petitioner,
FELICIA PONCE, Respondent.
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
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.
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. 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. . . .
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). 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.
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
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.
participated in several efforts to alter the foregoing
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,
motion to vacate or correct the judgment under 28 U.S.C.
section 2255 was filed on November 15, 2012, ECF No. 69,
denied at hearing on December 17, 2012. Id. at ECF
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