United States District Court, E.D. California
ORDER
Troy
L. Nuhley United States District Judge.
This
matter is before the Court on Defendant Prince Javan
Jenkins' (“Defendant”) Motion for
Reconsideration of his Probation Violation Sentence. (ECF No.
53.) The Government filed an opposition. (ECF No. 56.) For
the reasons set forth below, Defendant's motion is
DENIED.
On
October 5, 2007, Defendant pleaded guilty to possession with
intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1). (ECF No. 28.) On January 11, 2008,
Defendant was sentenced to 151 months of imprisonment with a
60-month term of supervised release to follow.[1] (ECF No. 33.) On
February 15, 2018, Defendant admitted five violations of his
supervised release: (1) cultivating marijuana; (2) possessing
marijuana; (3) polluting a stream; (4) diverting a stream;
and (5) possession of a dangerous weapon. (ECF No. 48.) At
the dispositional hearing on March 22, 2018, this Court
revoked Defendant's term of supervised release and
sentenced him to serve the remaining 46 months in federal
prison. (ECF No. 50.) Defendant, proceeding pro se,
filed the instant motion on April 15, 2019. (ECF No. 53.)
Defendant
asks the Court to reconsider his sentence for violating
supervised release pursuant to 28 U.S.C. § 2241
(“§ 2241”). (ECF No. 53 at 1.) Defendant
makes four main arguments: (1) he was part of a legal
marijuana growing co-op; (2) he was entitled to a hearing
pursuant to United States v. McIntosh, 833 F.3d 1163
(9th Cir. 2016)[2]; (3) his sentence violated the Equal
Protection Clause because other defendants received lower
sentences for similar crimes; and (4) the prosecution
unfairly targeted him.
At the
outset, Defendant cannot properly bring his motion under
§ 2241. “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 v. Herrera, 464 F.3d 895, 897
(9th Cir. 2006) (citations omitted). “The one exception
to the general rule is what we have called the ‘escape
hatch' of § 2255.” Id. “The
escape hatch permits a federal prisoner to file a habeas
corpus petition pursuant to § 2241 to contest the
legality of a sentence where his remedy under § 2255 is
inadequate or ineffective to test the legality of his
detention.” Id. (quotation omitted); see
also 28 U.S.C. § 2255. In the Ninth Circuit,
“a § 2241 petition is available under the
‘escape hatch' of § 2255 when a petitioner (1)
makes a claim of actual innocence, and (2) has not had an
‘unobstructed procedural shot' at presenting that
claim.” Id. at 898.
The
Court notes that Defendant's arguments are largely
unsupported. Indeed, Defendant's evidence consists only
of his medical marijuana prescription dated April, 20, 2017,
and a selection of signed contracts between the “Buds
Ultra Lounge” and its members during 2016. (ECF No. 53
at 8-110.) The Court finds that Defendant's evidence is
insufficient to suggest he was employed at a legal marijuana
growing co-op or that he was entitled to a McIntosh
hearing. Moreover, Defendant fails to provide any evidence
that his sentence violated Equal Protection or that the
prosecution unfairly targeted him.
Even
assuming Defendant makes a viable claim of actual innocence,
it appears he had an “unobstructed procedural
shot” at presenting his claim much earlier and by
proper motion. Defendant presumably knew of the evidence he
now presents long before he admitted to the violations of
supervised release. Further, Defendant could have argued that
he was entitled to a McIntosh hearing prior to
admitting his violation. Defendant also fails to explain why
he brought the instant motion over a year after the
sentencing at issue.[3] Put simply, there is no indication that
Defendant's remedy under § 2255 would have been
“inadequate or ineffective to test the legality of his
detention.”[4] Stephens, 464 F.3d at 897.
For the
foregoing reasons, the Court hereby DENIES Defendant's
motion. (ECF No. 53.)
IT IS
SO ORDERED.
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Notes:
[1] This Court later lowered
Defendant's sentence to 121 months because the United
States Sentencing Commission amended the applicable
sentencing range. (ECF No. 38.)
[2] In McIntosh, the Supreme
Court held that defendants charged with federal marijuana
offenses were entitled to evidentiary hearings to determine
whether their conduct was authorized by state medical
marijuana laws. 833 F.3d at 1179.
[3] Even if this Court construes
Defendant's motion as being brought under § 2255,
there is a one-year limitation for bringing a § 2255
motion. See 28 U.S.C. § 2255 (establishing that
a defendant typically must file a § 2255 motion within
one year of the final judgment). ...