United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS [30-DAY OBJECTION DEADLINE]
K. OBERTO. UNITED STATES MAGISTRATE JUDGE
is a federal prisoner proceeding pro se and in forma pauperis
with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. He is in the custody of the Bureau of
Prisons at the United States Penitentiary in Atwater,
California. He filed the instant federal petition on October
21, 2019, challenging his conviction and sentence. Because
Petitioner does not satisfy the savings clause in 28 U.S.C. Â§
2255 which would allow him to challenge his conviction by way
of Â§ 2241, the Court will recommend that the instant petition
January 30, 2013, Petitioner pled guilty to one count of
conspiracy to kidnap (18 U.S.C. § 1201(c)) in the United
States District Court for the Southern District of Georgia.
See United States v. Murray, No.
6:12-cr-00005-JRH-CLR (S.D. Ga.). The district court sentenced
Petitioner to a term of life imprisonment. Id.
March 27, 2013, Petitioner appealed to the Eleventh Circuit
Court of Appeals. Id. (Doc. 171.) On January 22,
2014, the appellate court affirmed the judgment. Id.
(Doc. 196.) On February 26, 2015, Petitioner filed a motion
to vacate judgment pursuant to 28 U.S.C. § 2255.
Id. (Doc. 199.) The trial court denied the §
2255 motion on August 10, 2015. Id. (Doc. 217.)
Petitioner appealed to the Eleventh Circuit on August 24,
2015, and the appeal was denied on December 30, 2015.
Id. (Docs. 223, 232.) Petitioner filed a motion for
reconsideration with the Eleventh Circuit, and the appellate
court denied the motion on March 1, 2016. Id. (Docs.
232, 240.) On December 5, 2017, Petitioner filed a motion for
emergency relief from a void judgment in the trial court.
Id. (Doc. 280.) On July 12, 2018, the district court
construed the motion as a § 2255 motion and denied it as
an unauthorized successive motion. Id. (Doc. 289.)
Petitioner appealed, and on February 21, 2019, the Eleventh
Circuit dismissed the appeal. Id. (Docs. 290, 297,
298.) Petitioner then filed a motion for writ of mandamus in
the sentencing court, and the court denied the motion on
March 26, 2019. Id. (Docs. 299, 300.) Petitioner
then filed several miscellaneous motions seeking relief which
the sentencing court summarily rejected. Id. (Docs.
309, 318, 324, 325.) Recently, on October 22, 2019, he filed
a motion to alter or amend judgment which is currently
pending in the sentencing court. Id. (Doc. 327.)
February 21, 2019, Petitioner filed a petition for writ of
habeas corpus in this Court in Nelson v. Lake, No.
1:19-cv-00249-LJO-SKO. The petition was dismissed for lack of
October 21, 2019, Petitioner filed the instant habeas
petition. He makes various vague and nonsensical claims
concerning the conviction and sentence. In Ground One, he
alleges that “the U.S. Attorney billed the petitioner,
then established/executed a bond/contract, then made claim on
the petitioner for not performing the terms of the bond which
resulted in the petitioner's prosecution and
imprisonment.” (Doc. 1 at 4.) In Ground Two, he appears
to claim that he was led to believe the proceeding was
criminal in nature, but it was in fact commercial in nature.
(Doc. 1 at 4.) In Ground Three, he claims “the U.S.
Attorney received a security/payment for the charges”;
therefore, he “cannot in addition be
incarcerated.” (Doc. 1 at 5.) In Ground Four, he
contends he should not be incarcerated because the penalty
for the crime is a money judgment which he has satisfied.
(Doc. 1 at 6.) Finally, in Ground Five, he alleges the
prosecutor and defense attorney committed fraud on the court,
violated due process, subjected Petitioner to cruel and
unusual punishment, and rendered ineffective assistance of
counsel. (Doc. 1 at 6.) He contends he had not agreed to the
terms of the amended plea agreement, but his signature was
forged, cut and pasted.
federal prisoner who wishes to challenge the validity or
constitutionality of his federal conviction or sentence must
do so by way of a motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. Tripati v.
Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also
Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.2006),
cert. denied, 549 U.S. 1313 (2007). In such cases,
only the sentencing court has jurisdiction. Tripati,
843 F.2d at 1163. Generally, a prisoner may not collaterally
attack a federal conviction or sentence by way of a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. Grady v. United States, 929 F.2d 468, 470 (9th
Cir.1991); Tripati, 843 F.2d at 1162; see also
United States v. Flores, 616 F.2d 840, 842 (5th
contrast, a prisoner challenging the manner, location, or
conditions of that sentence's execution must bring a
petition for writ of habeas corpus under 28 U.S.C. §
2241 in the district where the petitioner is in custody.
Stephens, 464 F.3d at 897; Hernandez v.
Campbell, 204 F.3d 861, 864-65 (9th Cir.2000) (per
curiam). “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, 464 F.3d at 897 (citations
an exception exists 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."
United States v. Pirro, 104 F.3d 297, 299 (9th
Cir.1997) (quoting 28 U.S.C. § 2255); see
Hernandez, 204 F.3d at 864-65. The Ninth Circuit has
recognized that it is a very narrow exception. 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 that section is
procedurally barred. See Aronson v. May, 85 S.Ct. 3,
5 (1964) (a court's denial of a prior § 2255 motion
is insufficient to render § 2255 inadequate.);
Tripati, 843 F.2d at 1162-63 (a petitioner's
fears of bias or unequal treatment do not render a §
2255 petition inadequate).
Ninth Circuit has held that Section 2255 provides an
‘inadequate and ineffective' remedy (and thus that
the petitioner may proceed under Section 2241) when the
petitioner: (1) makes a claim of actual innocence; and, (2)
has never had an ‘unobstructed procedural shot' at
presenting the claim. Stephens, 464 F.3d at 898. 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).
case, Petitioner is challenging the validity and
constitutionality of his conviction and sentence as imposed
by the United States District Court for the Southern District
of Georgia, rather than an error in the administration of his
sentence. Therefore, the appropriate procedure would be to
file a motion pursuant to § 2255 in the Southern
District of Georgia, not a habeas petition pursuant to §
2241 in this Court. Petitioner was made known of this fact in
his prior habeas proceeding in this Court, which was
dismissed for lack of habeas jurisdiction. Just as with the
previous habeas application, this Court lacks habeas
jurisdiction because Petitioner has had numerous unobstructed
procedural opportunities to present his claims, and he does
not present a claim of actual innocence.
as previously set forth, Petitioner has had numerous
opportunities to present his claims to the sentencing court,
and in fact, several of his claims were rejected by the
sentencing court. For example, his claim that his plea
agreement was invalid in light of allegedly forged signatures
on the amended plea agreement was rejected because the
sentencing court noted that the full terms of his plea were
discussed in open court. Murray, No.
6:12-cr-00005-JRH-CLR (Doc. 201 at 6.) The Court noted that
“the judge and government spelled out his crime's
elements”; and, “the record shows that Nelson
understood the nature of the charges against him, the rights
he gave up when he entered the guilty plea, and the possible
penalties for the offense.” Id. (Doc. 201 at
5.) Furthermore, the factual bases for his claims were known
to him prior to the filing of his first § 2255 motion.
The legal bases for his claims were also available to him
before he ...