United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS HABEAS
PETITION FOR LACK OF HABEAS JURISDICTION
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
October 19, 2017, Petitioner, a federal prisoner proceeding
pro se, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petitioner is currently
incarcerated at the Federal Correctional Institution
(“FCI”) in Mendota, California, where he is
serving a sentence of 454 months in prison. On July 15, 2002,
Petitioner was convicted in the Federal District Court for
the Eastern District of Tennessee of (1) conspiracy to commit
robbery in violation of 18 U.S.C. § 371; (2) aiding and
abetting armed bank robbery in violation of 18 U.S.C. §
2113(a), (d); (3) aiding and abetting by brandishing a
firearm in relation to a crime of violence in violation of 18
U.S.C. § 924(c)(1)(A)(ii); (4) aiding and abetting a
robbery in violation of 18 U.S.C. § 1951; and (5) aiding
and abetting by brandishing a firearm in relation to a crime
of violence in violation of 18 U.S.C. §
924(c)(1)(A)(ii). He challenges his conviction for aiding and
abetting, count 5, in light of the United States Supreme
Court's ruling in Johnson v. United States, 135
S.Ct. 2551 (2015). Petitioner alleges a claim of actual
innocence, contending that his predicate offense was not a
crime of violence. Because Petitioner has used the wrong
procedure to challenge his original sentence, the undersigned
recommends his petition be dismissed without prejudice.
federal prisoner who seeks to challenge the validity or
constitutionality of his federal conviction or sentence must
do so by filing a motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. Tripati v.
Henman, 843 F.2d 1160, 1161-62 (9th Cir. 1988);
Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.
2006). In such cases, only the sentencing court has
jurisdiction. Tripati, 843 F.2d at 1163. A prisoner
may not collaterally attack a federal conviction or sentence
using a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241, as Petitioner does in this case.
Tripati, 843 F.2d at 1162.
prisoner challenging the manner, location, or conditions of
the execution of his sentence may bring a petition for a writ
of habeas corpus under 28 U.S.C. § 2241 in the district
in which he is in custody. Stephens, 464 F.3d at
897; Hernandez v. Campbell, 204 F.3d 861, 864-65
(9th Cir. 2000). But a motion under 28 U.S.C. § 2255 is
the exclusive means by which a federal prisoner may test the
legality of his detention. Stephens, 464 F.3d at
897. Restrictions on the availability of a § 2255 motion
cannot be avoided by filing a petition under 28 U.S.C. §
federal prisoner can demonstrate that the remedy available
under § 2255 is "inadequate or ineffective to test
the validity of his detention, " however, he may
nonetheless seek relief under § 2241. United States
v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting 28
U.S.C. § 2255); Hernandez, 204 F.3d at 864-65.
The exception is very narrow. 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 § 2255 is procedurally
barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964);
Tripati, 843 F.2d at 1162-63; Williams v.
Heritage, 250 F.2d 390, 390 (9th Cir. 1957);
Hildebrandt v. Swope, 229 F.2d 582, 583
(9th Cir. 1956).
2255 provides an inadequate and ineffective remedy,
permitting a petitioner to proceed under § 2241, when
(1) the petitioner makes an 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 show that the remedy is inadequate or
ineffective. Redfield v. United States, 315 F.2d 76,
83 (9th Cir. 1963).
Petitioner challenges the validity and constitutionality of
the sentence imposed by the Eastern District of Tennessee
rather than the administration of his sentence at FCI
Mendota, proper procedure required him to file a motion
pursuant to § 2255 in the Eastern District of Tennessee
rather than a petition pursuant to § 2241 in this Court.
Petitioner does not explicitly address this issue, simply
arguing that his claim qualifies under the savings clause of
§ 1155 because he is actually innocent. The petition,
however, does not set forth a proper claim of actual
innocence. In the Ninth Circuit, a claim of actual innocence
for purposes of the § 2255 savings clause is tested
using the standard articulated by the U.S. Supreme Court in
Bousley v. United States, 523 U.S. 614 (1998).
Stephens, 464 U.S. at 898. "To establish actual
innocence, petitioner must demonstrate that, in light of all
the evidence, it is more likely than not that no reasonable
juror would have convicted him." Bousley, 523
U.S. at 623 (internal quotation marks omitted). The
petitioner bears the burden of proof. Lorentsen v.
Hood, 223 F.3d 950, 954 (9th Cir. 2000).
Petitioner does not assert that he was factually innocent of
the crimes of which he was convicted but challenges only the
determination of his sentence in light of the Supreme
Court's recent decision in Johnson. The savings
clause requires him to prove that he is actually innocent of
the crimes for which he was convicted, not that the sentence
was erroneously imposed. See Ivy, 328 F.3d at 1060;
Lorentsen, 223 F.3d at 954. As a result, the §
2241 petition now before the Court does not fit within the
exception of the general bar against using § 2241 to
collaterally attack a conviction or sentence imposed by a
federal court. Lorentsen, 223 F.3d at 954. See
also Harrison v. Ollison, 519 F.3d 952, 959
(9th Cir. 2008); Stephens, 464 F.3d at
has not demonstrated that § 2255 constitutes an
inadequate or ineffective remedy for raising his claims,
because he did not make a claim for actual innocence or
demonstrate that he was procedurally barred from bringing his
claim. Therefore, § 2241 is not the proper statute for
raising Petitioner's claims, and the undersigned
recommends the petition be dismissed for lack of
petitioner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition, but may only appeal in certain circumstances.
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
The controlling statute in determining whether to issue a
certificate of appealability is 28 U.S.C. § 2253, which
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the ...