United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT
JUDGE FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS [21-DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
is in the custody of the Bureau of Prisons at the Taft
Correctional Institution in Taft, California. He has filed
the instant petition pursuant to 28 U.S.C. § 2241
challenging his conviction for illegal reentry and the
removal order issued by the immigration court. Because
Petitioner does not satisfy the savings clause in 28 U.S.C.
§ 2255 which would allow Petitioner to challenge his
conviction by way of § 2241, the Court will recommend
that the instant petition be DISMISSED.
March 5, 1999, Petitioner was convicted in Las Vegas, Nevada,
of commercial burglary and felony forgery of credit card
under Nevada Revised Statutes (“NRS”) §
205.740. Ogunbanke v. Warden, Case No.
2:12-cv-10211-GHK (C.D. Cal. 2012), ECF No. 1 at
Thereafter, Petitioner was taken into custody by the Bureau
of Immigration and Customs Enforcement for commencement of
removal proceedings. Id. at 10. Petitioner applied
for Lawful Permanent Resident Cancellation of Removal, but
the immigration judge determined he was a convicted
aggravated felon and therefore ineligible for cancellation of
removal. Id. at 10. Petitioner was removed but
reentered the United States. He was charged with illegal
reentry pursuant to 8 U.S.C. § 1326 and pled nolo
contendere on July 2, 2012. Prior to November 29, 2012,
Petitioner's attorney advised him that there was an
unresolved issue whether his conviction for violating NRS
205.740 qualified as an aggravated felony. Id. at
10. Counsel stated that if the conviction was not an
aggravated felony, then he was wrongfully denied the
opportunity for cancellation of removal. Id. at 10.
Counsel advised Petitioner he had an argument for reopening
his removal hearing to request cancellation of removal if in
fact the forgery conviction was not an aggravated felony.
Id. at 10-11.
November 29, 2012, Petitioner filed a petition for writ of
habeas corpus under 28 U.S.C. § 2241 in the United
States District Court for the Central District of California.
Id. Petitioner challenged due process violations
allegedly committed during the deportation proceedings. The
petition was construed as a motion to vacate pursuant to 28
U.S.C. § 2255. Id. Subsequently, on March 15,
2013, Petitioner filed a § 2255 motion in the same
court. Ogunbanke v. United States, Case No.
2:13-cv-01896-GHK. The two cases were then consolidated. On
August 2, 2013, the motion was withdrawn by Petitioner
because he did not wish to waive his attorney-client
privilege. See Case No. 2:12-cv-10211-GHK, ECF No.
November 3, 2014, Petitioner filed a motion to vacate
pursuant to § 2255 in the Central District.
Ogunbanke v. United States, Case No.
2:14-cv-08498-GHK. Petitioner raised claims of ineffective
assistance of counsel concerning the illegal reentry
conviction. Id., ECF No. 1. He alleged counsel
failed to inform him that his forgery conviction under NRS
205.740 was not an aggravated felony under 8 U.S.C. §
1101(a)(43)(R). Id., ECF No. 1 at 6. He claimed the
forgery offense could not be used as a basis for removal, his
removal in 1999 was fundamentally unfair, and he could not
thereafter be convicted of illegal reentry. Id., ECF
No. 1 at 7. On January 5, 2015, the Central District denied
the motion with prejudice finding that the motion was
untimely and that he had not made a sufficient showing that
he was actually innocent of the illegal reentry charge.
Id., ECF No. 8.
September 1, 2016, Petitioner filed a motion to set aside
judgment in the § 2255 case pursuant to Fed.R.Civ.P.
Rule 60(b)(4), (6). Id., ECF No. 10. Petitioner
again argued that he was actually innocent of the illegal
reentry charge because the underlying deportation order was
void insofar as it was based on a forgery conviction that did
not qualify as an aggravated felony. Id., ECF No.
10. He argued that there had been an intervening change in
the law, citing Mathis v. United States, 136 S.Ct.
2243 (2016), United States v. Guzman-Ibarez, 792
F.3d 1094 (9th Cir. 2015), and United States v.
Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004). In
Mathis, the Supreme Court held that a prior
conviction does not qualify as the generic form of a
predicate violent felony offense in the Armed Career Criminal
Act if an element of the crime of conviction is broader than
an element of the generic offense because the crime of
conviction enumerates various alternative factual means of
satisfying a single element. Id. In
Guzman-Ibarez, the Ninth Circuit reviewed whether
the immigration judge had properly applied the Illegal
Immigration Reform and Immigrant Responsibility Act's
(IIRIRA's) amended definition of “aggravated
felony” to an alien in finding that he was deportable
as having been convicted of an “aggravated
felony.” 792 F.3d 1094. The Ninth Circuit held that the
immigration judge had violated the alien's due process
rights and remanded the matter to the district court.
Id. In Ubaldo-Figueroa, the Ninth Circuit
vacated a district court's denial of an alien's
collateral attack against his removal proceedings. 364 F.3d
1042. Ubaldo-Figueroa had filed a motion to dismiss the
indictment because the removal order was obtained in
violation of his due process rights. Id. at 1047.
The Ninth Circuit agreed with Ubaldo-Figueroa and reversed
his conviction for illegal reentry, ruling that the
underlying deportation order could not be used as the basis
for the conviction. Id. at 1051.
October 3, 2016, the Central District Court denied
Petitioner's Rule 60(b) motion. Case No.
2:14-cv-08498-GHK, ECF No. 52. The court found that the
motion was a disguised § 2255 motion, and that the
motion was another attempt to obtain relief on the merits
that had been addressed and denied in the prior § 2255
proceeding. Id. The motion was denied. Id.
Petitioner appealed to the Ninth Circuit, and on November 21,
2016, the Ninth Circuit denied the appeal, finding, inter
alia, that “jurists of reason would find it debatable
whether the underlying section 2255 motion states a valid
claim of the denial of a constitutional right.”
Id., ECF No. 55.
August 14, 2017, Petitioner filed the instant habeas petition
pursuant to § 2241. He again challenges his conviction
for illegal reentry based on the allegedly faulty indictment
in his removal proceedings.
federal prisoner who wishes to challenge the validity or
constitutionality of his federal conviction or sentence must
do so by way of a motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. Tripati v.
Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also
Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.2006),
cert. denied, 549 U.S. 1313 (2007). In such cases,
only the sentencing court has jurisdiction. Tripati,
843 F.2d at 1163. Generally, a prisoner may not collaterally
attack a federal conviction or sentence by way of a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. Grady v. United States, 929 F.2d 468, 470 (9th
Cir.1991); Tripati, 843 F.2d at 1162; see also
United States v. Flores, 616 F.2d 840, 842 (5th
contrast, a prisoner challenging the manner, location, or
conditions of that sentence's execution must bring a
petition for writ of habeas corpus under 28 U.S.C. §
2241 in the district where the petitioner is in custody.
Stephens, 464 F.3d at 897; Hernandez v.
Campbell, 204 F.3d 861, 864-65 (9th Cir.2000) (per
curiam). “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, 464 F.3d at 897 (citations
an exception exists by which a federal prisoner may seek
relief under § 2241 if he can demonstrate the remedy
available under § 2255 to be "inadequate or
ineffective to test the validity of his detention."
United States v. Pirro, 104 F.3d 297, 299 (9th
Cir.1997) (quoting 28 U.S.C. § 2255); see
Hernandez, 204 F.3d at 864-65. The Ninth Circuit has
recognized that it is a very narrow exception. Ivy v.
Pontesso, 328 F.3d 1057, 1059 (9th Cir.2003). The 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 Aronson v. May, 85 S.Ct. 3,
5 (1964) (a court's denial of a prior § 2255 motion
is insufficient to render § 2255 inadequate.);
Tripati, 843 F.2d at 1162-63 (a petitioner's
fears of bias or unequal treatment do not render a §
2255 petition inadequate).
Ninth Circuit has held that Section 2255 provides an
“inadequate and ineffective” remedy (and thus
that the petitioner may proceed under Section 2241) when the
petitioner: (1) makes a claim of actual innocence; and, (2)
has never had an “unobstructed procedural shot”
at presenting the claim. Stephens, 464 F.3d at 898.
The burden is on the petitioner to ...