United States District Court, E.D. California
MICHAEL S. IOANE, SR., Petitioner,
v.
GEORGINA PUENTES, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATION,
CONSTRUING PETITION FOR WRIT OF HABEAS CORPUS AS MOTION UNDER
28 U.S.C. § 2255, DISMISSING § 2255 MOTION AS
SUCCESSIVE, DIRECTING CLERK OF COURT TO CLOSE CASE, AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY (ECF NO.
10)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
Petitioner
is a federal prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241. On
October 1, 2019, [1] the Magistrate Judge issued Findings and
Recommendation that recommended construing the § 2241
petition as a motion brought under 28 U.S.C. § 2255 and
dismissing the § 2255 motion as successive. (ECF No.
10). The Findings and Recommendation was served petitioner
and contained notice that any objections were to be filed
within thirty (30) days of the date of service of the
Findings and Recommendation. Petitioner filed timely
objections and a supplement to his objections. (ECF Nos. 11,
12).
In
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), this Court has conducted a de novo review of
the case. Having carefully reviewed the entire file,
including Petitioner's objections, the Court concludes
that the Findings and Recommendation is supported by the
record and proper analysis.
“Generally,
motions to contest the legality of a sentence must be filed
under § 2255, ” Hernandez v. Campbell,
204 F.3d 861, 864 (9th Cir. 2000), but a “federal
prisoner may file a habeas petition under § 2241
[pursuant to the savings clause or escape hatch] to challenge
the legality of a sentence when the prisoner's remedy
under § 2255 is ‘inadequate or ineffective to test
the legality of his detention, '” Harrison v.
Ollison, 519 F.3d 952, 956 (9th Cir. 2008). A petitioner
may proceed under § 2241 pursuant to the savings clause
or escape hatch 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)).
In his
objections, Petitioner focuses on his argument that he
recently discovered evidence regarding grand jury tampering
and thus, did not have an unobstructed procedural shot at
presenting this claim. (ECF No. 11 at 2).[2] In the supplement
to the objections, Petitioner provides a copy of a letter he
received on October 23, 2019 from the Internal Revenue
Service (“IRS”) with an attached “Index of
Items Not Released, ” which Petitioner contends
“were hidden and concealed from Petitioner and his
counsel in connection with his criminal trial, ” are
“exculpatory, ” “and would lead to the
establishment of Petitioner's factual innocence.”
(ECF No. 12 at 1). However, the inquiry into whether
Petitioner had an unobstructed procedural shot at presenting
his claims does not turn on the discovery of new evidence.
See Harrison, 519 F.3d at 960 (“In determining
whether a petitioner had an unobstructed procedural shot to
pursue his claim . . . we consider: (1) whether the legal
basis for petitioner's claim ‘did not arise until
after he had exhausted his direct appeal and first §
2255 motion;' and (2) whether the law changed ‘in
any way relevant' to petitioner's claim after that
first § 2255 motion.”).
Based
on Petitioner's characterization of the alleged grand
jury tampering evidence and the IRS's “Index of
Items Not Released” evidence as being newly discovered,
28 U.S.C. § 2255 is not inadequate or ineffective
because § 2255(h) sets forth the procedure by which a
federal prisoner may challenge his conviction based on newly
discovered evidence. See 28 U.S.C. § 2255(h)(1)
(“A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court
of appeals to contain . . . newly discovered evidence that,
if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the
movant guilty of the offense[.]”).
“Where
a petition purportedly brought under § 2241 is merely a
‘disguised' § 2255 motion, the petitioner
cannot appeal from the denial of that petition without a
[certificate of appealability].” Harrison, 519
F.3d at 958. The controlling statute in determining whether
to issue a certificate of appealability is 28 U.S.C. §
2253, which provides as follows:
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the validity of such person's detention pending
removal proceedings.
(c) (1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to
the court of appeals from-
(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a
State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of
the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1)
shall indicate which specific issue or issues satisfy the
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