United States District Court, E.D. California
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)
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).
is currently incarcerated at the Federal Correctional
Institution in Mendota, California. (ECF No. 1 at
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). (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v. Brown, 988 F.2d 1213 (5th Cir. 1993) (unpublished
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).
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).
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.
Jurisdiction Under 28 U.S.C. § 2241
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).
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).
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
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).
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.”
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
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
Marrero, 682 F.3d at 1194-95 (citations omitted).
even if a petitioner may assert a cognizable claim of actual
innocence of a noncapital sentencing ...