United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No.
5) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ORDER
DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE
ORDER DECLINING TO ISSUE CERTIFICATE OF
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
is a federal prisoner proceeding in propria persona with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. On November 19, 2019, the Magistrate Judge
assigned to the case issued Findings and Recommendation to
dismiss the petition for lack of jurisdiction. (Doc. No. 5.)
This Findings and Recommendation was served upon all parties
and contained notice that any objections were to be filed
within thirty (30) days from the date of service of that
order. On December 11, 2019, Petitioner filed objections to
the Magistrate Judge's Findings and Recommendations.
(Doc. No. 6.)
accordance with the provisions of 28 U.S.C. § 636
(b)(1)(C), the Court has conducted a de novo review of the
case. Petitioner claims he satisfies the savings clause set
forth in § 2255 because he is actually innocent of a
sentencing enhancement. As noted by the Magistrate Judge, the
Ninth Circuit noted in Marrero v. Ives that circuit
courts “are in accord that a petitioner generally
cannot assert a cognizable claim of actual innocence of a
noncapital sentencing enhancement.” Marrero v.
Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) (collecting
cases). Here, Petitioner is asserting a purely legal claim
that his prior conviction for illegal entry did not qualify
for a sentence enhancement. He does not claim factual
innocence of his crimes which is a requirement in this
circuit to qualify under the savings clause. Stephens v.
Herrera, 464 F.3d 895, 898 (9th Cir. 2006).
addition, Petitioner fails to demonstrate that he did not
have an unobstructed procedural opportunity to present his
claim. In fact, Petitioner presented his claim in a
successive § 2255 motion to the sentencing court.
See United States v. Benitez-Torres, No.
2:01-cr-00249 (S.D. Tex.) (Doc. No. 224.) The § 2255
motion was dismissed as an unauthorized successive motion on
December 31, 2018. Id. (Doc. No. 225.) Petitioner
was advised that he was required to first seek authorization
from the Fifth Circuit before filing a second § 2255
motion, and that until he did so the court did not have
jurisdiction. Id. There is no indication that
Petitioner has done so, but the avenue is or was available.
In any case, Petitioner fails to argue that “the legal
basis for [his] claim did not arise until after he had
exhausted his direct appeal and first § 2255
motion.” Alaimalo v. United States, 645 F.3d
1042, 1047 (9th Cir. 2011).
carefully reviewed the entire file, including
Petitioner's objections, the Court concludes that the
Magistrate Judge's Findings and Recommendation is
supported by the record and proper analysis. Petitioner's
objections present no grounds for questioning the Magistrate
addition, the Court declines to issue a certificate of
appealability. A prisoner seeking a writ of habeas corpus has
no absolute entitlement to appeal a district court's
denial of his petition, and an appeal is only allowed in
certain circumstances. Miller-El v. Cockrell, 537
U.S. 322, 335-336 (2003). A successive petition under 28
U.S.C. § 2255 that is disguised as a § 2241
petition requires a certificate of appealability.
Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir.
2008); Porter v. Adams, 244 F.3d 1006, 1007 (9th
Cir. 2001). 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
(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
showing required by paragraph (2).
court denies a petitioner's petition, the court may only
issue a certificate of appealability when a petitioner makes
a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). To make a substantial
showing, the petitioner must establish that “reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to