United States District Court, E.D. California
THOMAS C. SHRADER, Petitioner,
B. WATSON, Acting Warden, Respondent.
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
LACK OF JURISDICTION
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Thomas C. Shrader is a federal prisoner proceeding pro
se with a petition for writ of habeas corpus pursuant to
20 U.S.C. § 2241. Petitioner alleges that the duration
of his sentence is excessive.
of the Rules Governing § 2254 Cases requires the Court
to conduct a preliminary review of each petition for writ of
habeas corpus. The Court must dismiss a petition "[i]f
it plainly appears from the petition . . . that the
petitioner is not entitled to relief." Rule 4 of the
Rules Governing 2254 Cases; see also Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A
petition for habeas corpus should not be dismissed without
leave to amend unless it appears that no tenable claim for
relief can be pleaded were such leave to be granted.
Jarvis v. Nelson, 440 F.2d 13, 14
Procedural and Factual Background
2010, following two separate trials in the Southern District
of West Virginia, Petitioner was convicted two counts of
stalking his victims, D.S. and R.S., through a facility of
interstate commerce (18 U.S.C. § 2261A(2)), and one
count of being a felon in possession of a firearm ((18 U.S.C.
§ 2261A(2)). See United States v. Shrader, 675
F.3d 300 (2012) (affirming the conviction and sentence on
direct appeal). Applying Petitioner's prior convictions
(two counts of murder, one count of wounding, and one count
of escape), the court sentenced Petitioner as an armed career
criminal to the upper limit of 235 months in prison followed
by five years of supervised release.
opinion, the Fourth Circuit detailed the
over-three-decades-long history of Petitioner's obsession
with his victim, which need not be repeated here. For
purposes of context only, it is sufficient to note that
beginning in approximately 1972, Petitioner and D.S., had a
brief romantic relationship while attending high school in
West Virginia. In 1975, sometime after the end of their
relationship, in an apparent attempt to abduct D.S.,
Petitioner shot and killed D.S.'s mother and a family
friend who were present in their home, and wounded a
neighbor. Following his conviction of those crimes,
Petitioner harassed D.S. during his term of imprisonment, and
at one point, escaped custody and surreptitiously watched
D.S. D.S. and her husband, R.S., eventually left West
Virginia and relocated to escape Petitioner's attention.
was paroled in 1993 and released from parole in 1999. In
2008, after locating D.S., Petitioner pursued her through
unwanted telephone calls and written communications that
placed D.S. and R.S. in fear for their own lives as well as
their children's lives.
addition to the direct appeal of his conviction, Petitioner
filed a § 2255 motion in the U.S. District Court for the
Southern District of West Virginia. See Schrader v.
United States, 2016 WL 299036 (S.D.W.Va. January 25,
2016) (No. 1:13-cv-33098), dismissed, 668 Fed.Appx.
494 (Mem.) (4th Cir. 2016), cert. denied,
2017 WL 844044 (April 3, 2017) (No. 16-8151). Schrader v.
United States, 2013 WL 4520013 (S.D.W.Va. Aug. 27, 2013)
(No. 1:13-cv-09386). A second § 2255 motion, addressing
the possible application to Petitioner's sentence of
Johnson v. United States, 135 S.Ct. 2551 (2015), is
presently pending in West Virginia. Schrader v. United
States (S.D.W.Va. No. 1:16-cv-05559). Petitioner has
filed at least five previous § 2241 petitions, including
Schrader v. Ives (C.D.Cal. 2:13-cv-01573-PSG-DTB),
presenting multiple grounds for relief including the
sentencing claim, and four petitions alleging the
substantially same sentencing claim as the above captioned
petition: Shrader v. Zuniga, 2015 WL 1567201
(E.D.Cal. Mar. 25, 2015) (No. 1:15-cv-00439-MJS HC);
Shrader v. Gill, 2014 WL 7336218 (E.D.Cal. Dec. 22,
2014) (No. 1:14-cv-01269-LJO-MJS HC); Schrader v. West
Virginia (S.D.W.Va. No. 1:14-cv-25344); and Schrader
v. United States (S.D.W.Va. No. 1:13-cv-09386).
Petitioner also filed a state habeas petition seeking to set
aside his 1975 convictions as error. Shrader v. West
Virginia (W.Va. May 17, 2013)(No. 12-0982)
(accessed May 24, 2017)).
No § 2241 Jurisdiction For Sentencing
exclusive means by which a federal prisoner may challenge the
validity or constitutionality of his conviction or sentence
is by filing a motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. Ivy v.
Pontesso, 328 F.3d 1057, 1059 (9th Cir.
2003); Tripati v. Henman, 843 F.2d 1160, 1162
(9th Cir. 1988). In such cases, only the
sentencing court has jurisdiction. Id. at 1163. A
prisoner may not collaterally attack a federal conviction or
sentence by filing a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Hernandez v.
Campbell, 204 F.3d 861, 865 (9th Cir. 2000);
Tripati, 843 F.2d at 1162. “Generally, motions
to contest the legality of a sentence must be filed under
§ 2255 in the sentencing court, while petitions that
challenge the manner, location, or conditions of the
sentence's execution must be brought pursuant to §
2241 in the custodial court.” Hernandez, 204
F.3d at 865. Because Petitioner in this case challenges the
validity and constitutionality of his sentence, the
appropriate procedure is to file a § 2255 motion in the
court of conviction, not a § 2241 petition in this
narrow exception, referred to as the “savings clause,
” or “escape hatch, ” permits a federal
prisoner authorized to seek relief under § 2255 to file
a § 2241 habeas petition if the remedy available under
§ 2255 is “inadequate or ineffective to test the
validity of his detention.” Alaimalo v. United
States, 645 F.3d 1042, 1047 (9th Cir. 2011).
The Petitioner bears the burden of proving that the remedy is
inadequate or ineffective. Redfield v. United
States, 315 F.2d 76, 83 (9th Cir. 1963). The
remedy available under § 2255 “is not
‘inadequate or ineffective' merely because §
2255's gatekeeping provisions prevent the petitioner from
filing a second or successive petition.” Ivy,
328 F.3d at 1059. Because Petitioner previously sought to set
aside his conviction in a § 2255 motion, he may not
bring a second or successive § 2255 motion without first
obtaining authorization from the Fourth Circuit Court of
Appeals, as required by 28 U.S.C. § 2244(b)(2) and (3).
See Schrader, 2016 WL 299036.
alternative, “a § 2241 petition is available under
the ‘escape hatch' of § 2255 when a petitioner
(1) makes a claim of actual innocence, and (2) has not had an
‘unobstructed procedural shot' at presenting that
claim.” Stephens v. Herrera, 464 F.3d 895, 898
(9th Cir. 2006). ...