United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITIONER'S
MOTION FOR DEFAULT JUDGMENT, GRANT RESPONDENT'S MOTION TO
DISMISS, AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS ORDER
DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE
AND SUBSTITUTE RESPONDENT (ECF Nos. 11, 12)
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 Federal Correctional
Institution in Mendota, California. Petitioner pleaded guilty
to conspiracy to commit sex trafficking of children, in
violation of 18 U.S.C. § 1594(c). The United States
District Court for the Southern District of California
sentenced Petitioner to an imprisonment term of 97 months.
(ECF No. 1 at 2, 13; ECF No. 11 at 2). Although
Petitioner did not file an appeal, Petitioner filed a motion
under 28 U.S.C. §2255. (ECF No. 1 at 2, 4; ECF No. 11 at
2). On May 2, 2019, the § 2255 motion was denied.
Rivers v. United States, No. 3:13-CR-3954-BEN-1,
2019 WL 1959583 (S.D. Cal. May 2, 2019).
on March 4, 2019, Petitioner filed the instant federal
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (ECF No. 1). Therein, Petitioner asserts that he
is actually innocent, claiming that the government failed to
disclose an interview of the victim, which occurred on or
around September 9, 2013, that exonerates Petitioner. (ECF
No. 1 at 3). In support of this claim, Petitioner has
attached to the petition a signed declaration of the victim,
dated February 15, 2018. (ECF No. 1 at 6).
2, 2019, Respondent filed a motion to dismiss the petition
for lack of jurisdiction and on the merits. (ECF No. 11). On
July 15, 2019, Petitioner filed a motion for default
judgment. (ECF No. 12). Petitioner has filed an opposition to
the motion to dismiss. (ECF No. 14).
Motion for Default Judgment
motion for default judgment, Petitioner argues that
Respondent has defaulted because Respondent did not submit a
response to the petition within the time period proscribed by
the Court. (ECF No. 12). This Court granted Respondent until
July 9, 2019 to file a response to the petition. (ECF No. 9).
Respondent filed a motion to dismiss the petition on July 2,
2019. (ECF No. 11). As Respondent complied with the deadline
set by the Court, Petitioner's motion for default
judgment should be denied.
Jurisdiction Under 28 U.S.C. § 2241
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).
instant petition challenges the validity of Petitioner's
conviction. Therefore, the appropriate procedure would be to
file a § 2255 motion in the court that imposed the
sentence rather than a § 2241 habeas petition in this
Court. However, § 2255(e)'s “escape
hatch” or “savings clause” permits a
federal prisoner to file a habeas corpus petition under
§ 2241 if the remedy under § 2255 “is
inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). A petitioner may
proceed under § 2241 pursuant to the escape hatch or
savings clause when the petitioner claims to be: “(1)
factually innocent of the crime for which he has been
convicted; and, (2) has never had an ‘unobstructed
procedural shot' at presenting this claim.” Ivy
v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003) (citing
Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir.
Ninth Circuit has recognized that this exception is narrow,
and 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. Ivy, 328 F.3d at 1059.
“In other words, it is not enough that the petitioner
is presently barred from raising his claim of innocence by
motion under § 2255. He must never have had the
opportunity to raise it by motion.” Id. at