Davis v. Crabtree, CV-98-8-RE.

• Decision Date: 01 July 1998
• Docket Number: No. CV-98-8-RE.,CV-98-8-RE.
• Citation: 10 F.Supp.2d 1136
• Parties: Michael J. DAVIS, Petitioner, v. Joseph H. CRABTREE, Respondent.
• Court: U.S. District Court — District of Oregon

10 F.Supp.2d 1136

Michael J. DAVIS, Petitioner, v. Joseph H. CRABTREE, Respondent.

No. CV-98-8-RE.

United States District Court, D. Oregon.

July 1, 1998.

Christine Stebbins Dahl, Federal Public Defender, Portland, OR, Steven T. Wax, Federal Public Defender, Portland, OR, for Michael Joseph Davis.

Frank Noonan, Judith D. Kobbervig, Kenneth C. Bauman, U.S. Attorneys Office, Portland, OR, for Joseph H. Crabtree.

OPINION

REDDEN, District Judge.

Petitioner Michael J. Davis, an inmate at FCI Sheridan, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The court dismisses the petition because it is an improper attempt to circumvent the statutory prohibition upon successive 28 U.S.C. § 2255 motions.

BACKGROUND

In 1990, petitioner was arrested after he sold four kilograms of cocaine to an undercover officer in a park about a mile from petitioner's residence. The police did not find any firearms on petitioner's person when he was arrested. Police then obtained a warrant and searched petitioner's residence. They found an open package containing approximately a kilogram of cocaine in a room adjacent to the master bedroom, and five more kilograms of cocaine on the grounds outside the house (two kilograms in a dog-house and three kilograms in a plastic bucket beneath an exterior deck). Police also found eight guns in the residence: two rifles, two twelve gauge shotguns, and four handguns. Defendant admits that seven of the guns were his, as was the cocaine.

Petitioner pled guilty to one count of possession, with intent to distribute, five kilograms or more of cocaine. This court sentenced him to 188 months in federal prison to be followed by a five year term of supervised release. (Criminal No. 90-230).

On December 20, 1993, petitioner filed a motion pursuant to 28 U.S.C. § 2255 challenging his sentence enhancement for obstruction of justice and the validity of a prior state conviction used to increase his criminal history category. (Civil No. 93-1585-RE). On February 7, 1994, this court ruled that both issues lacked merit. On March 14, 1995, the Ninth Circuit reversed in part, set aside the sentence enhancement for obstruction of justice, and remanded for resentencing. On October 2, 1995, this court sentenced petitioner to 151 months in federal prison to be followed by five years of supervised release.

In the interim, petitioner filed a second § 2255 motion, this one alleging that his conviction violated the double jeopardy clause since his home and property already had been the target of a civil forfeiture. (Civil No. 94-1581-JO). On July 17, 1996, petitioner's second § 2255 motion was denied.

In 1997, petitioner requested certification from the Ninth Circuit Court of Appeals to file a second or successive § 2255 motion, in accordance with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, tit. I, § 105, codified in relevant part at 28 U.S.C. § 2255. On October 27, 1997, the Ninth Circuit denied petitioner's request for certification. No. 97-80496 (unpublished order).

On January 5, 1998, petitioner filed this § 2241 petition, alleging that (1) the court violated his due process rights by imposing a two-level enhancement for possession of a weapon in conjunction with the offense without making specific findings of fact, (2) that he was deprived of his sixth amendment right to effective counsel because his attorney at the trial level failed to conduct a pretrial investigation and failed to oppose the weapon enhancement at the sentencing hearing or to demand specific factual findings and an evidentiary hearing to support the sentence enhancement.

On June 4, 1998, petitioner filed a Supplemental Memorandum asserting that his attorney at the plea and sentencing hearings was "laboring under an actual conflict of interest due to divided loyalties," Supplemental Memorandum, p. 1, because he simultaneously represented petitioner's sister in her efforts to avoid forfeiture of her interest in the residence where petitioner had been residing.

Respondent protests that petitioner cannot challenge the legality of his sentence under the rubric of a § 2241 petition in order to circumvent the AEDPA's prohibition upon successive § 2255 motions. Alternatively, respondent contends that the evidence amply supports the gun enhancement, that the court made the necessary factual findings, and that the performance of petitioner's counsel was not deficient.

DISCUSSION

Prior to 1948, petitions by federal prisoners for a writ of habeas corpus were governed by § 2241. In response to concerns that § 2241 petitions were unfairly burdening those courts situated near a federal prison — since under the existing rules a § 2241 petition could be filed only in the district where the petitioner was physically present — Congress enacted § 2255. See United States v. Hayman, 342 U.S. 205, 210-19, 72 S.Ct. 263, 96 L.Ed. 232 (1952). As a result, challenges to the legality of the conviction or sentence are now filed as § 2255 motions and heard in the district court where the inmate was convicted and sentenced, while challenges to the computation or execution of the sentence are still filed as § 2241 petitions and heard in the district where the inmate (or his custodian) is present.

Petitioner's challenge is directed at the legality of his sentence. Accordingly, that challenge must be brought under § 2255, not § 2241. See Doganiere v. United States, 914 F.2d 165, 169-70 (9th Cir.1990) (challenge to propriety of sentence must be brought under § 2255, while complaints about the manner of its execution are heard pursuant to § 2241); United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984) (same). However, because petitioner previously has filed one or more § 2255 motions, the AEDPA prohibits him from filing another § 2255 motion unless he first obtains certification from the Ninth Circuit Court of Appeals that his motion falls within the narrow category of successive motions authorized by that law. Such motions must be premised upon either:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255. The Ninth Circuit has denied petitioner's request for certification. Petitioner has now filed a § 2241 petition in which he seeks to assert the same challenge to the legality of his sentence that he is prohibited from pursuing via a § 2255 motion.

In his Supplemental Memorandum, petitioner cites Bousley v. United States, ___ U.S. ___, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), for the proposition that a § 2241 petition is a proper vehicle for litigating a claim of actual innocence. Petitioner's contention is incorrect for two reasons. First, the petition in Bousley was filed in June 1994, two years before Congress enacted the AEDPA. Id. 118 S.Ct. at 1607. Accordingly, unless the AEDPA is to be given retroactive application, it would have no bearing upon Bousley's petition. Second, the district court recognized that Bousley's claim had been improperly filed as a § 2241 petition, but decided to construe it as a § 2255 motion instead. Id. Bousley does not hold that in a post-AEDPA case, a § 2241 petition either is, or is not, a proper vehicle for asserting a claim of actual innocence. On the contrary, the issue never arose in that case.

Petitioner also relies upon Lorentsen v. Crabtree, Civil No. 97-897-ST (D.Or.1998). In Lorentsen, Judge Marsh recognized a narrow window whereby a defendant who was prohibited under the AEDPA from filing a successive § 2255 motion could nevertheless assert a challenge to the legality of his conviction or sentence pursuant to § 2241.

Lorentsen was convicted of "using" or "carrying" a firearm in violation of 18 U.S.C. § 924(c)(1), based upon a very broad interpretation of those terms applied by most circuits. Subsequently, the Supreme Court narrowly construed the statute. Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), holding limited by Muscarello v. United States, ___ U.S. ___, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998). In light of the interpretation of § 924(c)(1) announced in Bailey, the government conceded that Lorentsen's conduct did not constitute a crime and he was therefore innocent as a matter of law. Accordingly, he was entitled to have his conviction vacated. See Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (federal prisoner who is incarcerated for conduct that is later held not to be criminal may obtain his freedom through a motion under § 2255); Bousley, ___ U.S. ___, 118 S.Ct. 1604, 140 L.Ed.2d 828 (individual who pled guilty to § 924(c)(1) charge, based upon the prior interpretation of "using" a firearm, is entitled to have that conviction set aside if he was actually innocent of the crime as it was subsequently defined by the Supreme Court).

Because Lorentsen previously had filed one or more § 2255 motions, he could not file a successive § 2255 motion without first obtaining certification from the Court of Appeals. The AEDPA authorizes certification of a successive § 2255 motion in only two circumstances, neither of which applied to Lorentsen. His motion was not based upon "newly discovered evidence" or "a new rule of constitutional law." Rather, his motion was based upon a third circumstance, namely the Supreme Court's interpretation of a statute in a manner that altered the prevailing interpretation among the lower courts and made it clear that Lorentsen had been convicted of conduct that was not a crime under the statute as properly interpreted. Congress, perhaps failing to anticipate this scenario, did not include it in the list of...