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McKreith v. Lake

United States District Court, E.D. California

September 3, 2019

WILBERT MCKREITH, Petitioner,
v.
STEVEN LAKE, Warden, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY

          SHEILA K. OBERTO. UNITED STATES MAGISTRATE JUDGE

         Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He is currently in the custody of the Bureau of Prisons (“BOP”) at the United States Penitentiary located in Atwater, California. The action is proceeding on the First Amended Petition, filed on May 20, 2019. (Doc. 6.) Petitioner claims the BOP is unlawfully collecting restitution payments from his account to satisfy his criminal judgment. For reasons that follow, the Court concludes that the petition fails on the merits and will be DENIED.[1]

         BACKGROUND

         On December 18, 2002, Petitioner was found guilty in the United States District Court for the Southern District of Florida, by jury trial, of seven counts of bank robbery, in violation of 18 U.S.C. § 2113(a), and three counts of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). United States v. McKreith, Case No. 01-cr-06095-DMM (S.D. Fla. 2002), (Doc. 132). On March 3, 2003, Petitioner was sentenced to terms of 210 months for each count of bank robbery, to run concurrently, and terms of 300 months for each count of use of a firearm, to run consecutive to each other and to the terms for bank robbery, for an aggregate term of 1, 110 months in federal prison. Id., (Doc. 151). Petitioner was also ordered to pay a special assessment of $1, 000 and restitution in the amount $83, 697, according to the following schedule:

During the period of incarceration, payment shall be made as follows: (1) if the defendant earns wages in a Federal Prison Industries (UNICOR) job, then the defendant must pay 50% of wages earned toward the financial obligations imposed by this Judgment in a Criminal Case; (2) if the defendant does not work in a UNICOR job, then the defendant must pay $25.00 per quarter toward the financial obligations imposed in this order.

Id., (Doc. 151).

         On February 28, 2003, Petitioner appealed to the Eleventh Circuit District Court. Id., (Doc. 152). On August 16, 2005, the Eleventh Circuit affirmed the judgment. Id., (Doc. 195.)

         Petitioner then filed a motion to vacate judgment pursuant to 28 U.S.C. § 2255 on December 29, 2006. McKreith v. United States, Case No. 06-cv-61942-DMM (S.D. Fla. 2010), (Doc. 1). He raised fourteen claims asserting ineffective assistance of counsel and two claims alleging government suppression of exculpatory evidence. Id. None of the claims concerned the restitution fines. The district court denied the motion on the merits on March 31, 2010. Id., (Doc. 25). He filed a second § 2255 motion on December 28, 2015, and the district court denied the motion on May 31, 2016, as an unauthorized successive motion. McKreith, Case No. 01-cr-06095-DMM, (Docs. 206, 207). He filed a third § 2255 motion on June 2, 2017. Id., (Doc. 209). The motion was dismissed on July 11, 2017, as an unauthorized successive motion. Id., (Doc. 210.) On May 21, 2018, Petitioner filed a motion to have his sentence commuted. Id., (Doc. 212). On August 2, 2018, the motion was denied. Id., (Doc. 215). On January 2, 2019, Petitioner filed a motion to correct his sentence pursuant to the First Step Act of 2018. Id., (Doc. 217). On February 27, 2019, the motion was denied. Id., (Doc. 220).

         On March 18, 2019, Petitioner filed a petition for writ of mandamus in this Court. On April 11, 2019, the Court dismissed the petition with leave to file an amended § 2241 petition, because Petitioner failed to name a proper respondent and failed to state a cognizable claim.

         On May 20, 2019, Petitioner filed a First Amended Petition. (Doc. 6.) Respondent filed a response on July 25, 2019. (Doc. 9.) Petitioner filed a traverse on August 5, 2019. (Doc. 11.)

         DISCUSSION

         I. Jurisdiction

         A 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; Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). 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 Cir.1980).

         In 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, 204 F.3d at 865. “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 omitted).

         In this case, Petitioner claims that the BOP has no authority to collect restitution payments to satisfy the court-imposed criminal judgment. Such a claim concerns the conditions of the sentence's execution. Therefore, the Court has jurisdiction to consider this claim pursuant to 28 U.S.C. § 2241. Stephens, 464 F.3d at 897; Hernandez, 204 F.3d at 865. However, to the extent that Petitioner challenges the sentencing court's restitution order, such a claim concerns the validity and constitutionality of his sentence and should be raised in the sentencing court.

         II. Challenge to Sentence

         As noted by Respondent, an exception exists by which a federal prisoner may challenge his sentence pursuant to § 2241, referred to as the “savings clause” or “escape hatch” of § 2255. United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting 28 U.S.C. § 2255); see Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008); Hernandez, 204 F.3d at 864-65. “[I]f, and only if, the remedy under § 2255 is ‘inadequate or ineffective to test the legality of his detention'” may a prisoner proceed under § 2241. Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012); see 28 U.S.C. § 2255(e). The Ninth Circuit has recognized that it is a very narrow exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). The exception will not apply “merely because section 2255's gatekeeping provisions, ” such as the statute of limitations or the limitation on successive petitions, now prevent the courts from considering a § 2255 motion. Id., 328 F.3d at 1059 (ban on unauthorized or successive petitions does not per se make § 2255 inadequate or ineffective); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court's denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curiam) (§ 2255 not inadequate or ineffective simply because the district court dismissed the § 2255 motion as successive and court of appeals did not authorize a successive motion).

         The 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. Harrison, 519 F.3d at 959; Stephens, 464 F.3d at 898; accord Marrero, 682 F.3d at 1192. 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). If a petitioner fails to meet this burden, his § 2241 petition must be dismissed for lack of jurisdiction. Ivy, ...


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