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Shrader v. Watson

United States District Court, E.D. California

June 12, 2017

THOMAS C. SHRADER, Petitioner,
v.
B. WATSON, Acting Warden, Respondent.

          FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR LACK OF JURISDICTION

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         Screening Memorandum

         Petitioner 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.

         I. Screening Requirement

         Rule 4 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 (9thCir. 1971).

         II. Procedural and Factual Background

         In 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.

         In its 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.

         Petitioner 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.

         In 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) (www.courtswv.gov/supreme-court/memo-decisions/spring2013/12-0982memo.pdf (accessed May 24, 2017)).

         III. No § 2241 Jurisdiction For Sentencing Claims

         The 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 Court.

         A 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.

         In the 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). ...


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