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Walker v. Lake

United States District Court, E.D. California

September 23, 2019

JACOBY WALKER, Petitioner,
v.
STEVEN LAKE, [1] Respondent.

          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 JUDGE

         Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

         I.

         BACKGROUND

         Petitioner 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).[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).

         Petitioner 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 4).

         On 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).

         In the 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).

         On 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).

         II.

         DISCUSSION

         A 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).

         Nevertheless, 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).

         “An 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’s sentence.

         A 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 ...


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