United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO GRANT
RESPONDENT’S MOTION TO DISMISS AND DISMISS PETITION FOR
WRIT OF HABEAS CORPUS (ECF NO. 32) ORDER DIRECTING CLERK OF
COURT TO SUBSTITUTE RESPONDENT AND ASSIGN DISTRICT
is a federal prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
is currently incarcerated at the United States Penitentiary
in Atwater, California (“USP Atwater”). On
January 30, 1998, Petitioner was convicted by a jury in the
United States District Court for the Northern District of
Indiana of: conspiracy to distribute narcotics, two counts of
distribution of cocaine, using a firearm during a drug
trafficking offense, possession of an unregistered firearm
with a silencer, and employing a person under eighteen to
distribute cocaine. (ECF No. 1 at 2; ECF No. 32 at 2; ECF No.
51-5 at 2). Petitioner was sentenced to an
imprisonment term of life plus 360 months. (ECF No. 1 at 3;
ECF No. 32 at 2; ECF No. 51-5 at 4). The Seventh Circuit
affirmed the judgment and sentence. United States v.
Frazier, 213 F.3d 409 (7th Cir.), reh’g and
reh’g en banc denied sub nom. United States v.
Walker, 2000 U.S. App. LEXIS 15699 (7th Cir.), cert.
denied, 531 U.S. 1015 (2000).
filed a motion to vacate, set aside, or correct the sentence
pursuant to 28 U.S.C. § 2255, which the district court
denied on December 16, 2003. Order, United States v.
Walker, No. 2:97 CR 88 (N.D. Ind. Dec. 6, 2003), ECF No.
604. In 2005, Petitioner filed a motion to modify his
sentence pursuant to 18 U.S.C. § 3582 based on United
States Sentencing Guidelines (“USSG”) Amendment
591, which the district court denied on May 5, 2006.
United States v. Walker, No. 2:97 CR 88, 2006 WL
8426456, at *2 (N.D. Ind. May 5, 2006). Petitioner filed
another motion to modify his sentence pursuant to 18 U.S.C.
§ 3582 based on USSG Amendment 750, which the district
court denied on December 2, 2011. United States v.
Walker, No. 2:97 CR 88, 2011 WL 13187026 (N.D. Ind. Dec.
2, 2011), aff’d, 471 Fed.Appx. 528 (7th Cir.
2012). In 2015, Petitioner filed a motion to modify his
sentence pursuant to 18 U.S.C. § 3582 based on USSG
Amendment 782. Walker, No. 2:97 CR 88 (N.D. Ind.
Aug. 19, 2015), ECF No. 810. This latest sentencing reduction
motion is still pending before the United States District
Court for the Northern District of Indiana. (ECF No. 32 at
April 23, 2018, Petitioner filed the instant petition for
writ of habeas corpus in the United States District Court for
the Southern District of Indiana. (ECF No. 1). On July 20,
2018, the petition was transferred to the United States
District Court for the Central District of California based
on a belief that Petitioner had been transferred to the
United States Penitentiary in Victorville, California. (ECF
No. 9). On August 2, 2018, the petition was transferred to
this Court once Petitioner’s transfer to USP Atwater
was confirmed. (ECF No. 15).
petition, Petitioner challenges his sentence, which was
imposed by the United States District Court for the Northern
District of Indiana without computation of an explicit drug
quantity to arrive at a base offense level. Petitioner
contends that had the district court correctly calculated an
explicit drug quantity, Petitioner may not have received a
life sentence and would have been eligible for sentence
reductions pursuant to USSG Amendments 706 and 750. (ECF No.
1 at 4). Relying on Rosemond v. United States, 572
U.S. 65 (2014), Petitioner also asserts that he is actually
innocent of the § 924(c) conviction. (ECF No. 1 at
9–11). Petitioner filed an addendum to the petition to
further support his claim of actual innocence of the §
924(c) charge. (ECF No. 27).
February 5, 2019, Respondent filed a motion to dismiss the
petition. (ECF No. 32). On May 2, 2019, Respondent filed a
supplemental brief pursuant to a court order. (ECF No. 51).
On June 10, 2019, Petitioner filed a response to
Respondent’s supplemental brief. (ECF No. 52).
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). 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).
inquiry into whether a § 2241 petition is proper under
these circumstances is critical to the determination of
district court jurisdiction” because § 2241
petitions must be heard in the custodial court while §
2255 motions must be heard in the sentencing court.
Hernandez, 204 F.3d at 865. If the instant petition
is properly brought under 28 U.S.C. § 2241, this Court,
as the custodial court, has jurisdiction. Conversely, if the
instant petition is in fact a disguised § 2255 motion,
it must be heard in the United States District Court for the
Northern District of Indiana, which imposed
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). 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 ...