United States District Court, C.D. California
ORDER DISMISSING PETITION WITHOUT PREJUDICE
DAVID
O. CARTER, UNITED STATES DISTRICT JUDGE.
Kenneth
Graham (“Graham”) is a federal prisoner
incarcerated within this district. He filed a putative 28
U.S.C. § 2241 petition on November 15, 2019
(“Petition”) that raises four claims. Ground One
challenges the validity of the indictment, arguing that while
Graham was convicted as an aider and abettor, the indictment
“did not have a principle [sic]” and,
further, that the jury was not instructed on aiding and
abetting bases for criminal liability. Ground Two alleges
that Petitioner's trial counsel provided ineffective
assistance by failing to call alibi witnesses, cross-examine
“known drug addicts, ” share witness statements
with Petitioner, negotiate a plea bargain, check on a DNA
warrant that had not been signed by a judge, argue
“duel [sic] prosecution, ” and make any
motions on Petitioner's behalf. Ground Three asserts that
an enhancement imposed pursuant to 18 U.S.C. § 924(e) is
invalid, because Petitioner did not have three prior violent
or serious drug convictions. Finally, Ground Four asserts
that Petitioner's conviction pursuant to 18 U.S.C. §
924(c) is invalid, because there was no violent predicate
offense. (Petition at 3-4.)
Habeas
petitions brought pursuant to Section 2241 may be subjected
to the same screening requirements that apply to habeas
petitions brought pursuant to 28 U.S.C. § 2254.
See Rules 1(b) of the Rules Governing Section 2254
Cases in the United States District Courts, 28 U.S.C. foll.
§ 2254 (which permits this Court to “apply any or
all of these rules” to any habeas petition), and Rule 4
of the same (which mandates that a district court dismiss a
petition without ordering a responsive pleading where
“it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to
relief”); see also Bostic v. Carlson, 884 F.2d
1267, 1269-70 (9th Cir. 1989) (affirming district court's
dismissal of a Section 2241 petition under Habeas Rules 1(b)
and 4); Local Rule 72-3.2 (authorizing magistrate judge to
prepare for district judge proposed order for summary
dismissal and proposed judgment if it plainly appears from
the face of the habeas petition that the petitioner is not
entitled to relief). The Court has screened the Petition and,
for the following reasons, concludes that the Petition must
be dismissed summarily.
BACKGROUND
Pursuant
to Rule 201 of the Federal Rules of Civil Procedure, the
Court takes judicial notice of the federal dockets and
filings available through the PACER system. These records
show that, in a 2015 federal jury trial in Case No.
1:13-cr-00620-ELH, Graham was convicted in the United States
District Court for the District of Maryland (the
“Sentencing Court”) of violating 18 U.S.C.
§§ 1951(a), 924(c), and 922(g) (the
“Conviction”). He thereafter received a sentence
totalling 382 months. Graham appealed, and the United States
Court of Appeals for the Fourth Circuit affirmed the
Conviction on April 4, 2016 (Case No. 15-4318).
On
February 16, 2018, Graham filed a 28 U.S.C. § 2255
motion in the Sentencing Court, which he thereafter
supplemented through two filings (collectively, the
“Section 2255 Motion”). The Section 2255 Motion
raised versions of the same claims alleged in the instant
Petition as Grounds Two through Four. On October 16, 2018,
the Sentencing Court found that the Section 225 Motion was
untimely under the 28 U.S.C. § 2255(f) statute of
limitations and denied relief.
On
April 25, 2019, Graham filed a motion in the Fourth Circuit
seeking leave to file a second or successive Section 2255
motion again challenging his conviction under 18 U.S.C.
§ 924(c) (Case No. 19-207). On August 20, 2019, the
Fourth Circuit denied Graham leave to file a second or
successive Section 2255 motion.
DISCUSSION
Federal
courts have an independent obligation to examine their own
jurisdiction and may not entertain an action in which
jurisdiction is lacking. Hernandez v. Campbell, 204
F.3d 861, 865 (9th Cir. 2000). For federal prisoners wishing
to challenge matters related to their convictions and/or
sentences, there are two statutory bases for federal court
jurisdiction, 28 U.S.C. § 2241 (“Section
2241”) and 28 U.S.C. § 2255 (“Section
2255”).
A
Section 2241 habeas petition may be filed by a federal
prisoner to attack the “execution of his sentence,
” but not to attack its validity. White v.
Lambert, 370 F.3d 1002, 1009 (9th Cir. 2004);
Hernandez, 204 F.3d at 864. A motion under Section
2255 generally is the exclusive post-appeal mechanism by
which a federal prisoner may challenge the legality of his
conviction or sentence. See Muth v. Fondren, 676
F.3d 815, 818 (9th Cir. 2012); Harrison v. Ollison,
519 F.3d 952, 955 (9th Cir. 2008). The instant Petition does
not attack the execution of Graham's sentence; instead,
the four claims raised in the Petition directly attack the
validity of Graham's Conviction and related sentence.
Thus, Graham's present claims are required to be raised
by way of Section 2255 motion rather than Section 2241 habeas
petition.
There
is, however, “one exception” to the generally
exclusive nature of the Section 2255 remedy for federal
prisoners who wish to challenge the validity of their
convictions and/or sentences. Stephens v. Herrera,
464 F.3d 895, 897 (9th Cir. 2006). Section 2255(e) contains a
“savings clause” or “escape hatch, ”
which allows a federal prisoner to seek Section 2241 relief
when a Section 2255 motion is “inadequate or
ineffective to test the legality of his detention.”
See id.; see also Muth, 676 F.3d at 818;
Harrison, 519 F.3d at 956. A finding that Section
2255 is an inadequate or ineffective remedy constitutes
“a narrow exception” to the rule that Section
2255 provides a federal prisoner's exclusive remedy for
challenging a conviction and/or sentence. United States
v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997); see
also Ivy v. Pontesso, 328 F.3d 1057, 1069 (9th Cir.
2003).
The
Ninth Circuit has construed the “inadequate or
ineffective” language of Section 2255(e) narrowly and
made clear that it does not serve as a mechanism for
circumventing the procedural limitations on Section 2255
motions. See, e.g., Ivy, 328 F.3d at 1059;
Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir.
2000). For example, the Section 2255 remedy is not rendered
inadequate or ineffective because a petitioner's one-year
limitations period has run. Holland v. Pontesso, No.
99-15590, 2000 WL 1170161, at *1 (Aug. 17, 2000)
(“section 2255 is not inadequate or ineffective merely
because Holland has missed the statute of limitations for
filing a section 2255 motion”); see also Morales v.
Bezy, 499 F.3d 668, 672 (7th Cir. 2007) (when the
petitioner's Section 2255 motion was denied as untimely
and he failed to appeal that ruling, he was not permitted to
seek relief under Section 2241 by arguing that the timeliness
ruling has been incorrect and his Section 2255 remedy was
inadequate or ineffective, because a “prisoner cannot
be permitted to lever his way into section 2241 by
making his section 2255 remedy inadequate”);
Hill v. Morrison, 359 F.3d 1089, 1092 (8th Cir.
2003); Cradle v. United States, 290 F.3d 536, 539
(3d Cir. 2002). Similarly, a federal prisoner's inability
to obtain appellate certification to bring a second or
successive Section 2255 motion does not render the Section
2255 remedy inadequate or ineffective. Lorentsen,
223 F.3d at 953; Moore v. Reno, 185 F.3d 1054, 1055
(9th Cir. 1999). “§ 2255's remedy is not
‘inadequate or ineffective' merely because §
2255's gatekeeping provisions prevent the petitioner from
filing a second or successive petition.” Ivy,
328 F.3d at 1059.
The
Ninth Circuit has concluded that the Section 2255 remedy
qualifies as inadequate or ineffective only
“‘when a petitioner (1) makes a claim of actual
innocence, and (2) has not had an unobstructed procedural
shot at presenting that claim.'” Harrison,
519 F.3d at 959 (citation omitted); see also Muth,
676 F.3d at 819. The petitioner bears the burden of proving
the inadequacy or ineffectiveness of the Section 2255 remedy.
See Redfield v. United States, 315 F.2d 76, 83 (9th
Cir. 1963).
Graham
has not met that burden here, nor can he do so. He raised
three of his four claims already in the Sentencing Court
through his Section 2255 Motion, and on October 16, 2018,
they were found to be untimely. Graham failed to appeal that
ruling and it, thus, is final. Graham cannot obtain a second
bite of the apple by reraising his untimely claims in another
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