United States District Court, E.D. California
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS
AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 17]
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 and in
forma pauperis with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
is in the custody of the Bureau of Prisons at the United
States Penitentiary in Atwater, California. He filed the
instant federal petition on August 13, 2018, challenging his
conviction and sentence pursuant to 28 U.S.C. § 2241.
(Doc. 1.) On May 28, 2019, Respondent filed a motion to
dismiss the petition. (Doc. 17.) For reasons that follow, the
Court agrees with Respondent that Petitioner fails to satisfy
the “savings clause” or “escape
hatch” of § 2255(e), and regardless, the claims
are plainly without merit. Therefore, the Court will GRANT
Respondent’s motion to dismiss the
September 30, 2013, Petitioner pled guilty in the United
States District Court for the District of Nebraska to
distribution of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1), and carrying a firearm in
relation to a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(B). (Doc. 17-1 at 30.) As part of the
plea agreement, the government agreed to dismiss the
remaining five counts. (Doc. 17-1 at 30.) Petitioner waived
his right to contest his conviction and sentence in any
post-conviction proceedings, except: 1) “The right to
timely challenge the defendant’s conviction and
sentence of the Court should the Eighth Circuit Court of
Appeals or the United States Supreme Court later find that
the charge to which the Defendant is agreeing to plead guilty
fails to state a crime, ” and (2) “The right to
seek post[-]conviction relief based on ineffective assistance
of counsel, or prosecutorial misconduct, if the grounds for
such claim could not be known by the defendant at the time
the Defendant enters the guilty plea contemplated by this
plea agreement.” (Doc. 17-1 at 26.) On January 6, 2014,
the Nebraska District Court accepted the plea agreement.
(Doc. 17-1 at 30.) Pursuant to the plea agreement, Petitioner
was sentenced to terms of 82 months and 120 months, to be
served consecutively. (Doc. 17-1 at 31.)
September 29, 2014, Petitioner filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255, alleging
ineffective assistance of counsel. United States v.
Clark, No. 8:12-cr-00243-LSC-TDT-1, Doc. 113. On October
24, 2014, the Nebraska District Court denied the motion on
the merits. Clark, Doc. 117.
then sought authorization from the Eighth Circuit Court of
Appeals to file a successive habeas application. The Eighth
Circuit denied his request on July 23, 2015. Clark,
Docs. 121, 122.
9, 2016, Petitioner filed a second motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. Clark,
Doc. 126. Petitioner challenged his status as a career
offender under Johnson v. United States,
576 U.S. __, 135 S.Ct. 2551 (2015). Clark, Doc. 126.
He claimed his “firearm was not in no [sic] way used in
furtherance of the drug crime, ” the “law that
[he] was sentenced under at the time of [his] sentencing has
changed, ” and the “consecutive mandatory minimum
sentence of 10 years would now be an absurd application of
the law.” Clark, Doc. 126. On June 3, 2016,
the Nebraska District Court dismissed the motion as an
unauthorized successive motion. Clark, Docs. 128,
29, 2016, Petitioner filed a third motion to vacate his
sentence, again based on the holding in Johnson.
Clark, Docs. 136, 137. On the same date, the
Nebraska District Court issued General Order Number 2016-07
regarding petitions arising under Johnson, and
granted Petitioner leave to file an amended motion under
§ 2255 within 30 days. Clark, Doc. 138.
Petitioner did not file an amended motion. On November 4,
2016, the Eighth Circuit denied Petitioner’s petition
for authorization to file a successive habeas application.
Clark, Docs. 141, 142, 143. On April 3, 2017, the
Nebraska District Court summarily dismissed the motion to
vacate as an unauthorized successive motion. Clark,
Docs. 145, 146.
Petitioner was pursuing § 2255 post-conviction relief,
he also filed habeas petitions pursuant to 28 U.S.C. §
2241. On June 24, 2016, he filed a habeas petition in this
Court in Clark v. Matevousian, No.
1:16-cv-00912-LJO-JLT. He again challenged his sentence based
on Johnson. On March 27, 2017, the petition was
dismissed because Petitioner failed to satisfy the savings
clause in 28 U.S.C. § 2255 which would have permitted
the Court to entertain his claims.
August 13, 2018, Petitioner filed the instant habeas
petition. Petitioner again claims his prior convictions do
not qualify him as a career offender for purposes of the
career offender enhancement in light of Mathis v. United
States, 136 S.Ct. 2243 (2016). He also claims he is
actually innocent of the § 924(c) charge. On May 28,
2019, Respondent filed a motion to dismiss the petition.
(Doc. 17.) Respondent contends that Petitioner fails to meet
the jurisdictional requirements, that he waived his right to
collaterally attack his conviction and sentence in these
circumstances, and that the claims are otherwise meritless.
On August 29, 2019, Petitioner filed an opposition. (Doc.
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
exception exists by which a federal prisoner may seek relief
under § 2241, referred to as a “savings
clause” or “escape hatch.” United
States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997)
(citing 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. ...