Arroyo v. United States

• Decision Date: 07 October 2013
• Docket Number: Case No.: 1:13-cv-01536-JLT
• Court: U.S. District Court — Eastern District of California
• Parties: NORBERTO FRANCO ARROYO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

NORBERTO FRANCO ARROYO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No.: 1:13-cv-01536-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: October 7, 2013

FINDINGS AND RECOMMENDATIONS TO

DISMISS PETITION FOR WRIT OF HABEAS

CORPUS

ORDER REQUIRING THAT OBJECTIONS BE

FILED WITHIN TWENTY-ONE DAYS

ORDER DIRECTING CLERK TO ASSIGN

DISTRICT JUDGE TO CASE

Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of "audita querela," which the Clerk of the Court has docketed as a petition for habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1).

PROCEDURAL HISTORY

The petition was filed on September 23, 2013, challenging Petitioner's enhanced sentence following his 1995 conviction for conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846 and § 841(a)(1). (Doc. 1, p. 3). Petitioner challenges the two-level sentence enhancement imposed by the trial court based upon the fact that firearms were found at the house of Petitioner's co-conspirator. (Id., p. 4). Petitioner contends that "intervening" case law precludes the sentence enhancement by requiring "actual possession" of the weapon for the enhancement to apply. (Id., p. 2). The intervening cases upon which Petitioner reliesare United States v. Briggs, 623 F.3d 724 (9^th Cir. 2010), and United States v. Castro, 2012 WL 1552617 (E.D. Cal. May 1, 2012)(unpublished), both of which deal with the quantum of evidence required to support an enhanced sentence based upon gun possession. For the reasons discussed below, the Court has no alternative but to dismiss the petition.

DISCUSSION

A. General Principles of Habeas Corpus Jurisdiction.

A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9^th Cir. 2000). A federal prisoner who wishes to challenge the validity or constitutionality of his conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9^th Cir.1988); Thompson v. Smith, 719 F.2d 938, 940 (8^th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3^rd 1997); Broussard v. Lippman, 643 F.2d 1131, 1134 (5^th Cir.1981). In such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. A prisoner may not collaterally attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9^th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 F.2d 840, 842 (5^th Cir.1980).

In contrast, a federal prisoner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6^th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 177 (5^th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2^nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6^th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3^rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8^th Cir. 1987); Brown v. United States, 610 F.2d 672, 677 (9^th Cir. 1990).

B. Petitioner's Claims Are Not Cognizable As Habeas Claims.

As discussed above, when a federal inmate is challenging a conviction or sentence, the proper vehicle for challenging the same is by a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255 in the sentencing court, not a habeas corpus petition in the custodial court. Nevertheless, a federal prisoner authorized to seek relief under § 2255 may seek relief under § 2241 ifhe can show that the remedy available under § 2255 is "inadequate or ineffective to test the validity of his detention." Hernandez v. Campbell, 204 F.3d 861, 864-5 (9^th Cir.2000); United States v. Pirro, 104 F.3d 297, 299 (9^th Cir.1997) (quoting § 2255). The Ninth Circuit has recognized that this is a very narrow exception. Id; Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003) (a petitioner must show actual innocence and that he never had the opportunity to raise it by motion to demonstrate that § 2255 is inadequate or ineffective); Holland v. Pontesso, 234 F.3d 1277 (9^th Cir. 2000) (§ 2255 not inadequate or ineffective because Petitioner misses statute of limitations); Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court's denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Lorentsen v. Hood, 223 F.3d 950, 953 (9^th Cir. 2000) (same); Tripati, 843 F.2d at 1162-63 (9^th Cir.1988) (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9^th Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 (9^th Cir.1956); see United States v. Valdez-Pacheco, 237 F.3d 1077 (9^th Cir. 2001) (procedural requirements of § 2255 may not be circumvented by invoking the All Writs Act, 28 U.S.C. § 1651). The burden is on the petitioner to show the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9^th Cir. 1963).

In Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003), the Ninth Circuit held that the remedy under a § 2255 motion would be "inadequate or ineffective" if a petitioner is actually innocent, but procedurally barred from filing a second or successive motion under § 2255. Ivy, 328 F.3d at 1060-1061. That is, relief pursuant to § 2241 is available when the petitioner's claim satisfies the following two-pronged test: "(1) [the petitioner is] factually innocent of the crime for which he has been convicted and, (2) [the petitioner] has never had an 'unobstructed procedural shot' at presenting this claim." Id. at 1060.

"In determining whether a petitioner had an unobstructed procedural shot to pursue his claim, we ask whether petitioner's claim 'did not become available' until after a federal court decision." Harrison v. Ollison, 519 F.3d 952, 960 (9^th Cir. 2008), cert. denied __ U.S. ___, 129 S.Ct. 254 (2008). "In other words, 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." Id., citing Ivy, 328 F.3d at 1060-61. In explaining this two-part standard, the Ninth Circuit in Ivy stated:

In other words, it is not enough that the petitioner is presently barred from raising his claim of innocence by motion under 2255. He must never have had the opportunity to raise it by motion.

Ivy, 328 F.3d at 1060 (emphasis supplied).

Here, the Court need not address whether § 2255 is inadequate or ineffective because Petitioner has failed to show he is actually innocent of the charges against him. "To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604 (1998)(quoting Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851 (1995)); Stephens v. Herrera, 464 F.3d 895, 898 (9^th cir. 2008). "[A]ctual innocence means factual innocence, not mere legal insufficiency," and "in cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges." Bousley, 523 U.S. at 623-624. However, a petitioner's obligation to demonstrate actual innocence is limited to crimes actually charged or consciously forgone by the Government in the course of plea bargaining. See, e.g., id. at 624 (rejecting government's argument that defendant had to demonstrate actual innocence of both "using" and "carrying" a firearm where the indictment only charged using a firearm).

Although the United States Supreme Court has not provided much guidance regarding the nature of an "actual innocence" claim, the standards announced by the various circuit courts contain two basic features: actual innocence and retroactivity. E.g., Reyes-Requena v. United States, 243 F.3d 893, 903 (5^th Cir. 2001); In re Jones, 226 F.3d 328 (4^th Cir. 2000); In re Davenport, 147 F.3d 605 (7^th Cir. 1998); Triestman v. United States, 124 F.3d 361 (2^nd Cir. 1997); In re Hanserd, 123 F.3d 922 (6^th Cir. 1997); In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997).

Based upon a review of the petition, the Court concludes that Petitioner does not assert his "actual innocence" of the crime for which he was convicted; rather, he impliedly asserts a lack of evidence to connect him to the seized weapons upon which the sentence enhancement was based. However, the Ninth Circuit, along with various other circuits, have repeatedly held that a habeas petitioner cannot assert a claim of actual innocence based on a non-capital sentencing enhancement. Marrero v. Ives, 682 F.3d 1190, 1193-1194 (9^th Cir. 2012). In Marrero, the Ninth Circuit rejected aclaim of "actual innocence" as to a sentence enhancement for purposes of bringing the habeas petition under the escape hatch, concluding that the claim was not factual but a "purely legal claim":

Our sister circuits are in accord that a petitioner generally cannot assert a cognizable claim of actual innocence of a noncapital sentencing enhancement. See Bradford v. Tamez (In re Bradford ), 660 F.3d 226, 230 (5th Cir.2011) (per curiam) ("[A] claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that warrants review under § 2241."); Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir.2011) (en banc) ("[T]he savings clause does not authorize a federal prisoner to bring in a § 2241 petition a claim, which would otherwise be barred by § 2255(h), that the sentencing guidelines were misapplied in a way that resulted in a longer sentence not exceeding the

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