Harris v. Matevousian

• Decision Date: 24 February 2016
• Docket Number: Case No.: 1:16-cv-00242-JLT
• Parties: ROBERT MARVIN HARRIS, Petitioner, v. ANDRE MATEVOUSIAN, Respondent.
• Court: U.S. District Court — Eastern District of California

ROBERT MARVIN HARRIS, Petitioner, v. ANDRE MATEVOUSIAN, Respondent.

Case No.: 1:16-cv-00242-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

February 24, 2016

FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

ORDER REQUIRING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS

ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE

In this action, Petitioner seeks to challenge his sentence imposed by the United States District Court for the Southern District of Florida in June 2000 after he was convicted of conspiracy to distribute cocaine. The Court concludes the challenges he raises go to the imposition of the sentence, not to the execution of the sentence. Thus, he was obligated to file a petition in the sentencing court rather than proceeding here under 28 U.S.C. § 2241. Due to the lack of habeas jurisdiction, the Court recommends the matter be DISMISSED.

I. PROCEDURAL HISTORY

Petitioner filed the instant federal petition on February 22, 2016, challenging both his sentence and the Bureau of Prisons' computation of that sentence. (Doc. 1). The petition indicates that on June 30, 2000, Petitioner was convicted in the United States District Court for the Southern District of Florida, of conspiracy to distribute cocaine, and sentenced to a mandatory minimum life sentence. (Doc. 1, p. 10). Petitioner challenged that conviction and sentence with a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, filed in the sentencing court. The court denied that motion. (Id., p. 4). Petitioner sought permission from the United States Court of Appeals, Eleventh Circuit, to file a successive petition under § 2255 but that request was denied. (Id.).

Petitioner now brings this habeas petition, purporting to challenge the "legality and duration" of his confinement. (Doc. 1, p. 7). The petition raises two related arguments, and one separate claim. Specifically, Petitioner argues that (1) the mandatory minimum sentence imposed by the sentencing court was illegal because he was factually innocent of the underlying predicate convictions; (2) because the mandatory minimum sentence was illegal, Petitioner has already served his sentence and should be immediately released; and (3) the prior convictions used in his sentencing were not final at the time of sentencing and, therefore, the federal indictment was "void ab initio." (Doc. 1).

II. DISCUSSION

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).

Title 28 U.S.C. § 2255(e) provides as follows:

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). 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.

Brown v. United States, 610 F.2d 672, 677 (9^th Cir. 1990).

Petitioner's allegations, discussed above, are a challenge to the sentence imposed, not to the administration or execution of that sentence. As Petitioner candidly concedes, if the sentencing court had not imposed the mandatory minimum sentence required by the sentencing guidelines, he would have already completed his sentence. Thus, his claims are, in reality, predicated on errors that occurred at the time of sentencing, and the purportedly improper execution of that sentence is merely a consequence of the claimed wrong, not the cause. Thus, the proper vehicle for challenging such a legal mistake is a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, not a habeas corpus petition.

Nevertheless, a federal prisoner authorized to seek relief under § 2255 may seek relief under § 2241 only if he 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 v. Henman, 843 F.2d 1160, 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 that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9^th Cir. 1963). If the petitioner fails to meet that burden, the sec. 2241 petition will be dismissed for lack of jurisdiction. Ivy, 328 F.3d at 1061.

In Ivy, 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 that standard, the Ninth Circuit 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.

Id. at 1060 (emphasis supplied). Applying that standard, the Ninth Circuit rejected Ivy's claims, holding that the law regarding the underlying charges had not changed after his conviction and that he had an opportunity to raise such a claim in the past. Id. at 1061.

Petitioner is obligated to show that the§ 2255 remedy is inadequate or ineffective. Redfield, 315 F.2d at 83. Petitioner has failed to do so. As in Ivy, Petitioner cannot establish any relevant intervening change in the law since his conviction that would trigger the savings clause, nor has he established that he could not have raise these claims in his original appeal or, at the very least, in his earlier motions pursuant to § 2255. Therefore, Petitioner cannot seriously contend that he has not had an unobstructed procedural shot at presenting these claims in the trial court. Moreover, as discussed above, the mere fact that he has already filed a § 2255 petition that was denied does not mean that the procedure is inadequate or ineffective. Aronson v. May, 85 S.Ct. at 5; Lorentsen v. Hood, 223 F.3d at 953.¹

Accordingly, Petitioner has failed to establish that § 2255 is either inadequate or ineffective for purposes of invoking the savings clause, and the fact that he may now be procedurally barred by the AEDPA from obtaining relief does not alter that conclusion. Ivy, 328 F.3d 1059-1061 (§ 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...