United States District Court, E.D. California
ORDER DISMISSING PETITIONER'S AMENDED PETITION
FOR FAILURE TO STATE A CLAIM ECF No. 26, 28 ORDER DENYING
PETITIONER'S MOTION FOR COUNSEL ECF No. 27
Kenneth Richardson, a federal prisoner without counsel, filed
a writ of habeas corpus under 28 U.S.C. § 2241 on
November 22, 2017. ECF No. 1. On March 29, 2019, the court
granted respondent's motion to dismiss the petition and
gave petitioner 30 days to file an amended petition. ECF No.
25. We dismissed the petition because it could not be
properly filed under either habeas petition avenues available
to federal prisoners: 28 U.S.C. § 2241 or 28 U.S.C.
§ 2255. We found that the petition was improperly filed
under § 2241 because it challenged the legality of
petitioner's sentence, not the manner of execution of his
sentence. ECF No. 25 at 6. The petition did not qualify for
the savings clause of § 2241, which allows a petitioner
to file under § 2241 upon showing that a remedy under 28
U.S.C. § 2255 would be inadequate or ineffective.
Id. Finally, petitioner could not file under §
2255 because his multiple previous § 2255 petitions in
another district were denied, making the instant petition
second or successive. Id. at 9.
response, petitioner submitted two identical documents
captioned as motions to amend on April 4 and 12, 2019. ECF
No. 26, 28. Because these motions include new arguments, we
will construe them together as an amended petition. In the
amended petition, petitioner repeated the two arguments from
his original petition: (1) the sentencing judge failed to
fully comply with 21 U.S.C. § 851, which requires a
sentencing judge to inform a defendant of his rights and (2)
the use of petitioner's prior convictions in determining
his sentence was improper. ECF No. 26 at 4-6. Both claims
were dismissed, ECF No. 25, and will not be considered again.
petitioner argued that his sentence should be reduced under
the First Step Act of 2018. ECF No. 26 at 2-4. This claim
will not be considered here. To the extent petitioner wishes
to seek resentencing under the First Step Act, he should
petition the court that imposed his sentence. Section 404 of
the First Step Act of 2018 provides: “A court that
imposed a sentence for a covered offense may, on motion of
the defendant . . . impose a reduced sentence as if sections
2 and 3 of the Fair Sentencing Act of 2010 (Public Law
111-220; 124 Stat. 2372) were in effect at the time the
covered offense was committed.”
petitioner argues that, under United States v.
Wheeler, a “fundamental sentencing error”
should allow him to file his petition under the savings
clause of § 2241. See United States v. Wheeler,
886 F.3d 415 (4th Cir. 2018) (court allowed filing under the
savings clause of § 2241 because a new retroactive law
resulted in a fundamental defect in petitioner's
sentence). Seemingly, petitioner is asserting that the First
Step Act of 2018 is the new retroactive law causing a
fundamental sentencing error. Petitioner's argument fails
for two reasons: First, the Ninth Circuit has not adopted the
rule from Wheeler. In the Ninth Circuit, to be
eligible to file a habeas petition under the savings clause
of § 2241, a petitioner must “(1) make a claim of
actual innocence, and (2) not [have] had an unobstructed
procedural shot at presenting that claim.” Harrison
v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008) (quoting
Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir.
2006)). In determining whether a petitioner has had an
unobstructed procedural shot, 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.”
Harrison, 519 F.3d at 960. We determined that
petitioner did not meet the Harrison requirements,
as explained in the order dismissing the petition. ECF No.
25. Second, while petitioner is correct in arguing that the
First Step Act is a newly passed law with some retroactive
provisions, petitioner cannot seek habeas relief from this
court through making a First Step Act claim. Instead,
petitioner must submit a First Step Act petition to the
sentencing court in his case.
has presented no other arguments in his amended complaint.
His two new arguments both fail for failure to state a claim.
Therefore, we dismiss the amended petition for failure to
state a claim.
petitioner moved this court for the appointment of counsel,
stating that he lacks legal education and consistent access
to the prison law library. ECF No. 27. Here, petitioner's
amended complaint is dismissed. Therefore, his motion to
appoint counsel is denied as moot.
amended petition is dismissed for failure to state a claim.
ECF No. 26, 28
Petitioner's motion to appoint counsel is denied as moot.
ECF No. 27.
clerk of court is ...