Alaimalo v. U.S.

• Decision Date: 20 June 2011
• Docket Number: No. 08–56349.,08–56349.
• Citation: 645 F.3d 1042
• Parties: Vaatausili Mark ALAIMALO, Petitioner–Appellant,v.UNITED STATES of America; J.L. Norwood, Respondents–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

645 F.3d 1042

2011 Daily Journal D.A.R. 9028

Vaatausili Mark ALAIMALO, Petitioner–Appellant,

v.UNITED STATES of America; J.L. Norwood, Respondents–Appellees.

No. 08–56349.

United States Court of Appeals, Ninth Circuit.

Argued May 7, 2010.Submitted and Filed Feb. 28, 2011.Amended June 20, 2011.

Ramiah Shanti Brien, Oakland, CA, for the petitioner-appellant.Michael J. Raphael and Rosalind Wang, Office of the United States Attorney, Los Angeles, CA, for the respondent-appellee.Appeal from the United States District Court for the Central District of California, George P. Schiavelli, District Judge, Presiding. D.C. No. 2:08–cv–01090–GPS–JTL.Before: BETTY B. FLETCHER and RICHARD A. PAEZ, Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.^*Opinion by Judge B. FLETCHER; Dissent by Judge KORMAN.

ORDERS

B. FLETCHER, Circuit Judge:

The opinion filed on February 28, 2011 is amended as follows:

1. On page 2944 of the slip opinion, 636 F.3d at 1098, delete the following sentence:

We conclude that neither doctrine bars consideration of Alaimalo's petition because failure to entertain his claim of actual innocence would constitute manifest injustice.

2. Replace that sentence with:

We conclude that neither doctrine bars consideration of Alaimalo's petition.

3. On page 2944 of the slip opinion, 636 F.3d at 1098, delete the following sentence:

Even if the government had met its burden, we conclude that the abuse of the writ doctrine would not bar reconsideration of Alaimalo's claim because failure to entertain his claim would result in a fundamental miscarriage of justice.

4. Replace that sentence with:

Therefore, we do not reach this issue.

5. On page 2947 of the slip opinion, 636 F.3d at 1100, delete the following sentence:

We REVERSE and REMAND to the district court with instructions to issue the writ of habeas corpus, vacate Alaimalo's convictions for importation, and resentence Alaimalo on the remaining counts.

6. Replace that sentence with:

We REVERSE and REMAND to the district court with instructions to issue the writ of habeas corpus, and vacate Alaimalo's convictions for importation.

The dissent filed on February 28, 2011 is amended as follows:

1. On page 2961 of the slip opinion, 636 F.3d at 1108, delete the following four sentences:

Although it suggests that neither of these doctrines are applicable here, it avoids resolving that issue because it concludes that both of those doctrines contain an exception where relief is necessary to remedy a “fundamental miscarriage of justice,” Majority Op. at 1098, or a “manifest injustice,” id. at 1098–99. The majority holds that this exception to both doctrines is satisfied here. I disagree.

I first address this threshold issue, because it relates both to the law of the case and the abuse of the writ doctrines.

2. Replace those sentences with the following:

The majority holds that the law of the case doctrine is not applicable here because “failure to entertain Alaimalo's claim would result in manifest injustice.” Majority Op. at 1099. And the majority rejects the abuse of the writ doctrine on the ground that the government bears the burden to raise it and failed to do so.

I first address the issue of manifest injustice, because it relates both to the law of the case and the abuse of the writ doctrines, although the majority does not rely on it with respect to the latter.

OPINION

Vaatausili Mark Alaimalo, a federal prisoner, appeals the dismissal of his habeas corpus petition brought under 28 U.S.C. § 2241. We first must determine whether we have jurisdiction to consider this petition, brought without a certificate of appealability (“COA”). Alaimalo has demonstrated both actual innocence and that his actual innocence claim was not available to him on direct appeal or when he filed his first motion for habeas relief under 28 U.S.C. § 2255. We conclude that we have jurisdiction to consider his petition for habeas relief brought under 28 U.S.C. § 2241 without a COA.

We must also determine whether we should give preclusive effect, under either the law of the case or abuse of the writ doctrines, to a prior panel's denial on the merits of Alaimalo's October 2006 § 2241 petition. Because we hold that Alaimalo is actually innocent and that failing to consider his habeas petition would result in manifest injustice, we decline to do so.

FACTS

Alaimalo was convicted in 1997 of three counts of importing methamphetamine from California to Guam in violation of 21 U.S.C. §§ 952(a) & 960 and three counts of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a). For each of his three importation convictions, he received a life sentence; for the three possession convictions, he received two life sentences and one sentence of 360 months. All of his sentences run concurrently.

In the § 2241 habeas petition before this panel, Alaimalo claims that he is actually innocent of importing methamphetamine from California to Guam. He argues that transporting drugs from one location within the jurisdiction of the United States (California) to another location within the jurisdiction of the United States (Guam) was not “importation” prohibited by 21 U.S.C. § 952(a).

Alaimalo first raised this claim of actual innocence on direct appeal. The Ninth Circuit affirmed Alaimalo's convictions and sentences in an unpublished decision. See United States v. Alaimalo, No. 97–10454, 1998 WL 852911 (9th Cir. Dec. 2, 1998). The court did not address Alaimalo's claim that his conduct did not qualify as importation. Id.

In 1999, Alaimalo timely filed a motion for habeas relief under 28 U.S.C. § 2255. Appearing pro se, Alaimalo argued that his trial and appellate counsel were constitutionally ineffective. The district court denied the motion on the merits and the Ninth Circuit affirmed in 2002. See United States v. Alaimalo, 313 F.3d 1188 (9th Cir.2002).

In 2003, a Ninth Circuit en banc court held that transporting drugs from one location within the United States (California) to another (Guam) does not constitute importation within the meaning of 21 U.S.C. § 952(a). United States v. Cabaccang, 332 F.3d 622, 623 (9th Cir.2003) (en banc). Cabaccang overruled two previous decisions holding that transporting drugs over or through international waters constituted importation. See Guam v. Sugiyama, 846 F.2d 570, 572 (9th Cir.1988); United States v. Perez, 776 F.2d 797, 801 (9th Cir.1985); see also Cabaccang at 634–35.

In March 2005, relying on Cabaccang, Alaimalo filed a habeas petition under 28 U.S.C. § 2241 in the Eastern District of California. He argued that he was actually innocent of the importation charges. The court found that Alaimalo was actually innocent, but that he could not proceed under § 2241 because he could have raised his innocence claim at sentencing, on direct appeal, and in his first § 2255 motion. The district court dismissed the petition for lack of jurisdiction, and Alaimalo's appeal to the Ninth Circuit was dismissed in an unpublished order as untimely. Alaimalo v. Shultz, No. 06–15658 (9th Cir. June 9, 2006).

In October 2006, Alaimalo filed a second § 2241 petition in the Central District of California. Appearing pro se, he raised, among other claims, an actual innocence claim based on Cabaccang. The district court dismissed his petition for lack of jurisdiction, holding that Alaimalo could have raised his claims in an earlier § 2255 motion. Alaimalo appealed. In September 2008, in a three paragraph unpublished disposition, the Ninth Circuit affirmed the dismissal of Alaimalo's October 2006 § 2241 petition. See Alaimalo v. United States, 317 Fed.Appx. 619 (9th Cir.2008) (“ Alaimalo II ”).

In February 2008, while Alaimalo II was pending, Alaimalo submitted another § 2241 habeas petition raising the Cabaccang argument to the Central District of California. The district court dismissed the petition for lack of jurisdiction. Alaimalo filed a timely notice of appeal. After the district court declined to issue a COA, the Ninth Circuit resumed jurisdiction and the appeal was submitted to this panel.

DISCUSSION

I. The Court Has Appellate Jurisdiction Despite the Lack of a Certificate of Appealability

At the threshold, we must determine whether we have jurisdiction to consider Alaimalo's appeal from the dismissal of his February 2008 petition without a COA.¹ As a general rule, “[ section] 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of his detention.” Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.2003); Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir.2000). To challenge a sentence that was imposed “in violation of the Constitution or laws of the United States,” a federal prisoner may “move the court which imposed the sentence to vacate, set aside or correct the sentence” pursuant to 28 U.S.C. § 2255. A prisoner may appeal the denial of a § 2255 motion only if the Ninth Circuit or the district court issues a COA. 28 U.S.C. § 2253(c)(1)(B).

However, a federal prisoner may file a habeas petition under § 2241 if the remedy provided by § 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C § 2255(e); see also Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir.2008). This is called the “savings clause” or “escape hatch” of § 2255. Harrison, 519 F.3d at 956. A petition meets the escape hatch criteria where a petitioner “(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.” Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir.2006) (internal quotation marks omitted).

Where a petition purportedly brought under § 2241 is merely a “disguised” § 2255 motion, the petitioner cannot appeal the denial of that petition absent a COA; a valid § 2241 petition, however, must be considered, even absent a COA. Harrison, 519 F.3d at 958–59. Because we “retain jurisdiction to determine our jurisdiction,” we proceed to consider whether “th...