Ceja v. Birkholz
| Decision Date | 03 May 2022 |
| Docket Number | CV 22-1636-FWS(E) |
| Parties | TONY LOMELI CEJA, Petitioner, v. MR. BIRKHOLZ, Respondent. |
| Court | U.S. District Court — Central District of California |
ORDER OF DISMISSAL
Petitioner a federal prisoner, filed a “Petition for Writ of Habeas Corpus By a Person in State Custody” on March 10, 2022. The Petition seeks to challenge Petitioner's 2014 conviction in the Southern District of California for unlawful possession of a firearm and conspiracy to distribute methamphetamine. See Lomeli v. United States, 2019 WL 4534825 (S.D. Cal. Sept. 19, 2019).
On April 6, 2022, Respondent filed “Respondent's Motion to Dismiss or Transfer Petition for Writ of Habeas Corpus, etc.” On April 20, 2022, Petitioner filed a “Reply, etc.”
On May 30, 2014, a jury in the Southern District of California found Petitioner guilty of unlawful possession of a firearm in violation of 18 U.S.C. section 922(g)(1) and conspiracy to distribute methamphetamine in violation of 18 U.S.C. sections 841(a)(1) and 846. See Lomeli v. United States, 2019 WL 4534825, at *1; Docket in United States v Lomeli, United States District Court for the Southern District of California case number 3:12-cr-02791-JAH (“Petitioner's criminal case”).[1] The court sentenced Petitioner to a ten year prison term for the firearm possession and a concurrent term of 312 months for the drug offense, plus ten years' supervised release. See Lomeli v. United States, 2019 WL 4534825, at *1; Docket in Petitioner's criminal case. The United States Court of Appeals for the Ninth Circuit affirmed the judgment on February 18, 2016. See United States v. Lomeli, 637 Fed. App'x 358 (9th Cir. 2016).
On June 27, 2016, Petitioner filed in the sentencing court a “Motion Under 28 USC § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody, ” contending that Petitioner's sentence was unlawful under Johnson v. United States, 576 U.S. 591 (2015). On January 7, 2019, Petitioner filed a “Motion for Leave to Amend Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence By a Person in State Custody, ” seeking to add claims for alleged ineffective assistance of counsel and alleged denial of equal protection based on asserted evidentiary error. On January 31, 2019, the court granted Petitioner's motion to amend. On September 19, 2019, the court denied Petitioner's section 2255 motion, as amended. See Lomeli v. United States, 2019 WL 4534825 (S.D. Cal. Sept. 19, 2019).
In the meantime, on October 1, 2018, Petitioner filed in the sentencing court a “Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241, ” challenging the conviction and sentence. See Docket in Lomeli v. United States, United States District Court for the Southern District of California case number 3:18-cv-228-JAH. This petition contained several confused allegations, including allegations that: (1) the petition was “NOT a 2255” but rather “a Full Satisfaction of Judgment”; (2) the criminal judgment had been “Accepted for Value and Returned for Value, in Exchange for a Complete Setlment [sic] and Closure of ALL Accounts”; (3) the federal government had violated the Constitution by “Replac[ing] The American Monetary System with Worthless Securities”; and (4) legal documents were “Accepted for Value, Claimed and Liened at a Sum Certain of $900, 000, 000, 000.00 USD” in accordance with the California Commercial Code and “PUBLIC POLICY.” The petition contained numerous citations of unclear import, including citations to the California Commercial Code, Internal Revenue Service forms, District of Columbia statutes and the Bible. Petitioner sought, among other things, an order requiring the Federal Bureau of Prisons to “release the Biological property” (i.e., Petitioner himself) and to expunge “the Entire Record” in Petitioner's criminal case. The court denied this petition on January 3, 2019. The United States Court of Appeals for the Ninth Circuit dismissed Petitioner's ensuing appeal for failure to prosecute.
The present Petition contains four somewhat overlapping grounds for relief:
Ground One:
The indictment allegedly violated the Constitution because the Constitution assertedly requires an amendment “to be able to give congress enumerated power to regulate and enforce drugs laws, [and] none exists.”
Ground Two:
There is no constitutional amendment imposing a national prohibition against drugs classified as controlled substances. The prosecution failed to produce any constitutional amendment “as mandated by Article V of the Constitution”[2] to “enforce any drugs laws specifically for interstate commerce.” The statutes cited in the indictment purportedly are unconstitutional, and the criminal court assertedly did not have subject matter jurisdiction.
Ground Three:
The government allegedly violated due process by failing to “execute an extradition request from one of the states to the federal venue, ” as allegedly required by the Interstate Agreement on Detainers Act. Petitioner supposedly was domiciled in the “California Republic, not in any federal zone or enclave.”
Ground Four:
The government allegedly was in contempt of the Constitution for failure to adhere to Article V of the Constitution “and follow its command to amend it to regulate drug laws.” The government's decision not to proceed by constitutional amendment “is indicative of the government's contempt for constitutional governance.”
A federal prisoner who contends that his or her conviction or sentence is subject to collateral attack “may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. A prisoner generally may not substitute a habeas petition under 28 U.S.C. section 2241 for a section 2255 motion. See 28 U.S.C. § 2255; see also Stephens v. Herrera, 464 F.3d 895, 897-99 (9th Cir. 2006), cert. denied 549 U.S. 1313 (2007); Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000).
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e); see Stephens v. Herrera, 464 F.3d at 897-99; Hernandez v. Campbell, 204 F.3d at 864. Here, Petitioner has applied for, and has been denied, section 2255 relief in the sentencing court.
“Under the savings clause of § 2255, however, a federal prisoner may file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under section 2255 is ‘inadequate or ineffective to test the legality of his detention.'” Hernandez v. Campbell, 204 F.3d at 864-65; see also Stephens v. Herrera, 464 F.3d at 897. This “savings clause” exception to section 2255 exclusivity is a “narrow” exception. Ivy v. Pontesso, 328 F.3d 1057, 1059-60 (9th Cir.), cert. denied, 540 U.S. 1051 (2003); United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). “The general rule in this circuit is that the ban on unauthorized second or successive petitions does not per se make § 2255 inadequate or ineffective.” Stephens v. Herrera, 464 F.3d at 898 (citations, quotations and brackets omitted). Mere lack of success in the sentencing court does not render the section 2255 remedy “inadequate or ineffective.” Boyden v. United States, 463 F.2d 229, 230 (9th Cir. 1972), cert. denied, 410 U.S. 912 (1973); see Tripati v. Henman, 843 F.2d 1160, 1163 (9th Cir.), cert. denied, 488 U.S. 982 (1988) (). If the rule were otherwise, every disappointed prisoner/movant incarcerated in a district different from the sentencing district could pursue a repetitive section 2241 petition in the district of incarceration. Petitioner bears the burden of proving the inadequacy or ineffectiveness of the section 2255 remedy. See Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963); Gasaway v. Jusino, 2021 WL 3042275, at *3 (C.D. Cal. June 1, 2021), adopted, 2021 WL 3037391 (C.D. Cal. July 16, 2021).
A federal prisoner may file a section 2241 petition under the savings clause only if the prisoner “(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.” Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012), cert. denied, 568 U.S. 1173 (2013) (citation and internal quotations omitted); see also Pavulak v. Blanckensee, 14 F.4th 895, 897 (9th Cir. 2021), cert. denied, 142 S.Ct. 1188 (2022).
In analyzing whether a petitioner had an “unobstructed procedural shot, ” the Court considers: “(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 v. Ollison, 519 F.3d 952, 960 (9th Cir.), cert. denied, 555 U.S. 911 (2008) (internal quotations omitted).
In the present case, the “legal basis” for Petitioner's claims that Congress allegedly lacked the power to enact federal drug laws was available to Petitioner prior to the time of Petitioner's direct appeal and section 2255 motion. See U.S. Cont., Art. 1, § 8 (conferring on Congress the power to regulate interstate commerce and to make all laws “necessary and proper” to its...
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