United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS THE PETITION
FOR WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION
Willis Mark Haynes is a federal prisoner proceeding pro
se with a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241. In the instant petition, Petitioner
challenges his conviction and sentence imposed by the United
States District Court for the Southern District of Maryland.
As this Court does not have jurisdiction to entertain the
instant petition pursuant to the savings clause of 28 U.S.C.
§ 2255(e), the undersigned recommends dismissal of the
is currently incarcerated at the United States Penitentiary
in Atwater, California, serving a sentence imposed by the
United States District Court for the Southern District of
Maryland for murder, kidnapping, and use of a handgun during
a crime of violence. (ECF No. 1 at 2). The Fourth
Circuit affirmed Petitioner's conviction and sentence.
Thereafter, Petitioner filed a motion under 28 U.S.C. §
2255 to vacate, set aside, or correct his sentence, which the
Southern District of Maryland denied on July 16, 2006. (ECF
No. 1 at 2).
February 20, 2018, Petitioner filed the instant federal
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (ECF No. 1). Therein, Petitioner asserts that
the indictment was defective. (ECF No. 1 at 3). On March 13,
2018, the Court ordered Petitioner to show cause why the
petition should not be dismissed for lack of jurisdiction.
(ECF No. 9). Petitioner filed his response to the order to
show cause on May 15, 2018. (ECF No. 12).
federal court may not entertain an action over which it has
no jurisdiction. Hernandez v. Campbell, 204 F.3d
861, 865 (9th Cir. 2000) (per curiam). Thus, a district court
must address the threshold question whether a petition was
properly brought under § 2241 or § 2255 in order to
determine whether the district court has jurisdiction.
Id. A federal prisoner who wishes to challenge the
validity or constitutionality of his federal conviction or
sentence must do so by moving the court that imposed the
sentence to vacate, set aside, or correct the sentence under
28 U.S.C. § 2255. Alaimalo v. United States,
645 F.3d 1042, 1046 (9th Cir. 2011). “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 v. Herrera,
464 F.3d 895, 897 (9th Cir. 2006) (citations omitted).
a “savings clause” or “escape hatch”
exists in § 2255(e) 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.”
Alaimalo, 645 F.3d at 1047 (internal quotation marks
omitted) (quoting 28 U.S.C. § 2255); Harrison v.
Ollison, 519 F.3d 952, 956 (9th Cir. 2008);
Hernandez, 204 F.3d at 864-65. The Ninth Circuit has
recognized that it is a very narrow exception. See 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. Id. 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 may proceed under § 2241 pursuant to the
savings clause when the petitioner “(1) makes a claim
of actual innocence, and (2) has not had an
‘unobstructed procedural shot' at presenting that
claim.” Stephens, 464 F.3d at 898 (citing
Ivy, 328 F.3d at 1060). With respect to the first
requirement, in the Ninth Circuit a claim of actual innocence
for purposes of the § 2255 savings clause is tested by
the standard articulated by the Supreme Court in Bousley
v. United States, 523 U.S. 614 (1998).
Stephens, 464 F.3d at 898. In Bousley, the
Supreme Court explained that “[t]o 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.” 523 U.S. at 623
(internal quotation marks and citation omitted). Furthermore,
“actual innocence means factual innocence, not mere
legal insufficiency.” Id.
respect to the second requirement, “it is not enough
that the petitioner is presently barred from raising his
claim of innocence by motion under § 2255. He must never
have had the opportunity to raise it by motion.”
Ivy, 328 F.3d at 1060. In determining whether a
petitioner never had an unobstructed procedural shot to
pursue his claim, the Court considers “(1) whether the
legal basis for petitioner's claim ‘did not arise
until after he had exhausted his direct appeal and first
§ 2255 motion;' and (2) whether the law changed
‘in any way relevant' to petitioner's claim
after that first § 2255 motion.” Harrison v.
Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (quoting
Ivy, 328 F.3d at 1060-61).
petition, Petitioner asserts that the indictment was
defective because it did not charge the first or second
element of the offense and failed to specify which subsection
of 18 U.S.C. § 2 was being charged. (ECF No. 1 at 3).
However, Petitioner's assertions regarding a defective
indictment challenge the legal sufficiency of the convictions
rather than demonstrate Petitioner's factual innocence.
Although Petitioner argues that this Court has jurisdiction
to entertain the petition “due to the fact that Trial
Counsel and Appellate Counsel didn't preserve the issue
on direct appeal nor was it discovered before his filing of
his 2255 motion to vacate sentence, ” Petitioner's
assertion fails to establish that the legal basis
for his claim arose only after he had exhausted his direct
appeal and first § 2255 motion. /// Based on the
foregoing, the Court finds that Petitioner has not satisfied
the two requirements to bring a § 2241 habeas petition
under the savings clause of § 2255(e). Therefore, this
Court lacks jurisdiction over the instant petition.
a civil action is filed in a court . . . and that court finds
that there is a want of jurisdiction, the court shall, if it
is in the interest of justice, transfer such action . . . to
any other such court in which the action . . . could have
been brought at the time it was filed . . . .” 28
U.S.C. § 1631. This provision applies to habeas
petitions. See Hernandez, 204 F.3d at 865 n.6
(noting that § 1631 allows transfer of habeas petition
to cure want of jurisdiction). “Transfer is appropriate
under § 1631 if three conditions are met: (1) the
transferring court lacks jurisdiction; (2) the transferee
court could have exercised jurisdiction at the time the
action was filed; and (3) the transfer is in the interest of
justice.” Cruz-Aguilera v. INS, 245 F.3d 1070,
1074 (9th Cir. 2001) (citing Kolek v. Engen, 869
F.2d 1281, 1284 (9th Cir. 1989)).
noted above, Petitioner previously filed a § 2255 motion
in the Southern District of Maryland. (ECF No. 1 at 2). Thus,
the United States District Court for the Southern District of
Maryland would not have jurisdiction to entertain a
“second or successive” § 2255 motion unless
Petitioner first obtained authorization from the appropriate
court of appeals. 28 U.S.C. § 2255(h); United States
v. Lopez, 577 F.3d 1053, 1061 (9th Cir. 2009).
Accordingly, the undersigned concludes that transfer ...