United States District Court, E.D. California
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
K. OBERTO. UNITED STATES MAGISTRATE JUDGE
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.
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
Id., (Doc. 151).
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.)
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).
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.
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.)
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
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
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
Challenge to Sentence
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).
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.