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Rivers v. Parr

United States District Court, E.D. California

October 10, 2019

MELVIN WARREN RIVERS, Petitioner,
v.
MELISSA PARR,[1] Respondent.

          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)

         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 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).[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).[3]

         Meanwhile, 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).

         On July 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).

         II.

         DISCUSSION

         A. Motion for Default Judgment

         In the 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.

         B. Jurisdiction Under 28 U.S.C. § 2241

         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).

         The 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. 2000)).

         The 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 1060. ...


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