United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATION, 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 NOS. 32, 53)
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
September 23, 2019, the Magistrate Judge issued Findings and
Recommendation that recommended Respondent's motion to
dismiss be granted and the petition for writ of habeas corpus
be dismissed for lack of jurisdiction as Petitioner failed to
satisfy the criteria to bring a § 2241 petition pursuant to
the escape hatch of 28 U.S.C. § 2255(e). (ECF No. 53).
Petitioner filed timely objections. (ECF No. 54).
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.
In his
objections, Petitioner challenges the Magistrate Judge's
characterization that Petitioner was not convicted under the
aiding and abetting theory and only convicted under the
Pinkerton theory of liability with respect to his
§ 924(c) offense. Petitioner contends that
Rosemond is retroactively applicable to his case and
that he is entitled to habeas relief “[b]ecause there
is no nexus between that particular firearm\silencer”
and Petitioner. (ECF No. 54 at 2, 3).[1]
A
petitioner may proceed under § 2241 pursuant to the
escape hatch or savings clause 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)). To determine whether a petitioner
never had an unobstructed procedural shot to pursue his
claim, the Court considers “(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.” Harrison v. Ollison, 519
F.3d 952, 960 (9th Cir. 2008) (quoting Ivy, 328 F.3d
at 1060-61). “An intervening court decision must
‘effect a material change in the applicable law' to
establish unavailability.” Alaimalo v. United
States, 645 F.3d 1042, 1047 (9th Cir. 2011) (quoting
Harrison, 519 F.3d at 960). That is, an intervening
court decision must “constitute[] a change in
the law creating a previously unavailable legal
basis for petitioner's claim.” Harrison,
519 F.3d at 961 (second emphasis added) (citing Ivy,
328 F.3d at 1060).
Even
assuming, without deciding, that Petitioner was convicted
under the aiding and abetting theory[2] and that Rosemond v.
United States, 572 U.S. 65 (2014), is retroactively
applicable to cases on collateral review, the Court finds
that Petitioner still fails to satisfy the criteria to bring
a § 2241 petition pursuant to the escape hatch of §
2255(e) because Petitioner has not established that he never
had an unobstructed procedural shot at presenting his actual
innocence claim regarding the § 924(c) offense.
Petitioner
previously raised claims challenging the sufficiency of the
evidence regarding his § 924(c) conviction on direct
appeal and in his motion for new trial. In addition, the
Seventh Circuit has held that a claim based on
Rosemond[3] was not previously unavailable under its
precedent for purposes of invoking the escape hatch under 28
U.S.C. § 2255(e). Although Rosemond had not
been decided at the time of Petitioner's trial, direct
appeal, and first § 2255 motion, the argument made in
Rosemond was not foreclosed by the state of the law
in the Seventh Circuit. Montana v. Cross, 829 F.3d
775, 784-85 (7th Cir. 2016).[4] See Harrison, 519 F.3d
at 961 (noting that while a new Supreme Court decision may
give “additional encouragement for defendants to
argue” a certain claim, such additional encouragement
does not necessarily “constitute[] a change in
the law creating a previously unavailable legal basis for
petitioner's claim”).
The
Court also declines to grant Petitioner's request to
transfer the instant habeas proceeding back to the United
States District Court for the Southern District of Indiana,
where the petition was originally filed. The United States
District Court for the Southern District of Indiana
transferred Petitioner's petition because “the
petitioner has been moved . . . [and] no longer has any
connection to this district and the respondent has not yet
filed a return to the show cause order.” (ECF No. 9 at
1). The Court adopts the Magistrate Judge's previous
determination:
This Court declines to revisit the Southern District of
Indiana's determination to transfer the petition when
Petitioner changed facilities and no longer had any
connection to that district. Further, the Seventh
Circuit's ruling regarding Rosemond's
retroactivity is not a justifiable basis for transfer.
See Rumsfeld v. Padilla, 542 U.S. 426, 458 (2004)
(Stevens, J., dissenting) (“All Members of this Court
agree that . . . habeas petitioners should not be permitted
to engage in forum shopping.”).
(ECF No. 33 at 2).
Having
determined that Petitioner is not entitled to habeas relief,
the Court now turns to whether to issue a certificate of
appealability. “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
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