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Brown v. Plumley

United States District Court, E.D. California

October 29, 2019

ROBERT STEVEN BROWN, Petitioner,
v.
BRUCE PLUMLEY, Respondent.

          ORDER LIFTING STAY, GRANTING RESPONDENT'S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY (ECF No. 19)

         Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The parties have consented to the jurisdiction of a United States Magistrate Judge. (ECF Nos. 4, 8).

         I. BACKGROUND

         Petitioner is currently incarcerated at the Federal Correctional Institution in Mendota, California. (ECF No. 1 at 1).[1] According to the petition and the docket for the United States District Court for the Northern District of Texas, on June 12, 1992, Petitioner pleaded guilty to possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).[2] (ECF No. 1 at 4; ECF No. 19 at 2). On August 13, 1992, Petitioner was sentenced to an imprisonment term of 200 months. (ECF No. 1 at 4; ECF No. 19 at 2). On March 19, 1993, the judgment was affirmed. United States v. Brown, 988 F.2d 1213 (5th Cir. 1993) (unpublished table decision).

         On August 18, 2015, Petitioner filed a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, which the district court denied as untimely. Brown v. United States, No. 4:15-CV-646-A, 2015 WL 6125721 (N.D. Tex. Oct. 15, 2015). The Fifth Circuit denied a certificate of appealability. United States v. Brown, No. 15-11105 (5th Cir. Sept. 26, 2016). Thereafter, on or around February 7, 2017, Petitioner filed an application for authorization to file a second or successive § 2255 motion, which the Fifth Circuit denied on March 29, 2017. (ECF No. 1 at 5, 34-35).

         On November 15, 2018, Petitioner filed the instant petition for writ of habeas corpus, challenging the sentence imposed by the United States District Court for the Northern District of Texas. (ECF No. 1). Petitioner asserts that he “should be resentenced minus the Armed Career Criminal Act (ACCA) enhancement, ” arguing that his prior burglary convictions could not serve as predicates for an enhanced sentence under the ACCA. (ECF No. 1 at 5, 6-7).

         On May 31, 2019, the Court granted Respondent's motion to stay the instant proceeding pending the Supreme Court's resolution of United States v. Herrold, No. 17-1445, and Quarles v. United States, No. 17-778. (ECF No. 18). On June 28, 2019, Respondent filed a motion to dismiss in light of the Supreme Court's recent decision in Quarles. (ECF No. 19). To date, Petitioner has not filed any opposition, and the time for doing so has passed.

         II.

         DISCUSSION

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

         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 Texas, 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).

         B. Actual Innocence

         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 have convicted him.” 523 U.S. at 623 (internal quotation marks and citation omitted). Furthermore, “actual innocence means factual innocence, not mere legal insufficiency.” Id.

         The Ninth Circuit has “not yet resolved the question whether a petitioner may ever be actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch.” Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012). In Marrero, the Ninth Circuit held that “the purely legal argument that a petitioner was wrongly classified as a career offender under the Sentencing Guidelines is not cognizable as a claim of actual innocence under the escape hatch.” Id. at 1195. The Marrero court also discussed, but did not endorse, the following exceptions recognized in other circuits to the general rule that a petitioner cannot assert a cognizable claim of actual innocence of a noncapital sentencing enhancement:

First, some courts have held that a petitioner may be actually innocent of a sentencing enhancement if he was factually innocent of the crime that served as the predicate conviction for the enhancement. Second, some courts have suggested that a petitioner may qualify for the escape hatch if he received a sentence for which he was statutorily ineligible. And third, some courts have left open the possibility that a petitioner might be actually innocent of a sentencing enhancement if the sentence resulted from a constitutional violation.

Marrero, 682 F.3d at 1194-95 (citations omitted).

         Regardless, even if a petitioner may assert a cognizable claim of actual innocence of a noncapital sentencing ...


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