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Clark v. Lake

United States District Court, E.D. California

September 24, 2019

AARON CLARK, Petitioner,
v.
STEVEN LAKE, Warden, Respondent.

          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 APPEALABILITY

          SHEILA K. OBERTO. UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         Petitioner 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 petition.[1]

         BACKGROUND

         On 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.)

         On 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.

         Petitioner 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.

         On May 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, 129.

         On June 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.

         While 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.

         On 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. 25.)

         DISCUSSION

         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).

         An 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).

         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. ...


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