Harrison v. Ollison

• Decision Date: 20 March 2008
• Docket Number: No. 06-55470.,06-55470.
• Citation: 519 F.3d 952
• Parties: Dave HARRISON, Petitioner-Appellant, v. Derrick L. OLLISON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

519 F.3d 952

Dave HARRISON, Petitioner-Appellant, v. Derrick L. OLLISON, Warden, Respondent-Appellee.

No. 06-55470.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 27, 2007.

Filed March 20, 2008.

Kurt David Hermansen, Law Office of Kurt David Hermansen, San Diego, CA, for the petitioner-appellant.

Carol C. Lam, United States Attorney; Bruce R. Castetter, Lawrence E. Spong, Assistant United States Attorneys, San Diego, CA, for the respondent-appellee.

Appeal from the United States District Court for the Southern District of California; Dana M. Sabraw, District Judge, Presiding. D.C. No. CV-05-01465-DMS.

Before: J. CLIFFORD WALLACE, THOMAS G. NELSON, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

A federal prisoner challenging the legality of a sentence must generally do so by a motion pursuant to 28 U.S.C. § 2255. However, when a motion under § 2255 is "inadequate or ineffective to test the legality" of a prisoner's detention, see id., a prisoner may bring a habeas petition under 28 U.S.C. § 2241. This appeal requires us to determine whether the petitioner, Dave Harrison, was entitled to bring his habeas petition under § 2241. Before reaching that question, we must determine whether Harrison needs a certificate of appealability, see 28 U.S.C. § 2253(c), before he can appeal the district court's dismissal of his § 2241 petition for lack of jurisdiction.

I

In 1988, Dave Harrison was charged with using a pipe bomb to blow up a 1978 Volkswagen van and with burning a 1974 Reinell cabin cruiser motorboat. Harrison pleaded guilty in the district court for the Southern District of California to bombing and arson, in violation of 18 U.S.C. § 844(i).¹ This federal arson statute includes an interstate commerce element for purposes of establishing federal jurisdiction, namely, that the arson must have affected a "building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." Id.

As part of the plea agreement, both Harrison and the government stipulated to the interstate commerce component of § 844(i). For the van, the parties stipulated:

[A]t the time the van was driven and used in the commercial business which [Harrison's wife] delivered, basically delivered cakes to many people[;] those cakes have traveled in interstate commerce.

In addition, the van was fueled with gasoline that had traveled in interstate and foreign commerce; and, finally, the van itself had been manufactured in the Republic of West Germany, having traveled in foreign commerce, had been sold here in California and replacement parts necessary to repair the damage that the defendant did will also travel in interstate and foreign commerce.

The parties stipulated to the interstate commerce component for the cabin cruiser motorboat as follows:

[T]he boat was manufactured in 1974 in the state of Washington. It was traveling in interstate commerce and was sold in California. At the time it was destroyed had been [sic] many parts had traveled in interstate commerce. The boat was licensed in the state of Nevada and the owner of the boat paid a fee to a business for the care and maintained and stored the boat in the state of Nevada where it was moored most of the time. The owner of the boat frequently crossed state lines with it bringing it to California and between Nevada and Arizona.

Harrison was sentenced by the district court for the Southern District of California to two consecutive ten-year prison terms for the arson and bombing, which were to be followed by a five-year probationary term for aiding and abetting the interstate transportation of stolen property. Harrison is currently in state prison in the Central District of California and will commence federal parole upon his release.² For purposes of clarity, we will refer to the district court for the Southern District of California, where Harrison was sentenced, as the "sentencing court," and the district court for the Central District of California, where Harrison is in custody, as the "custodial court."

Harrison filed a timely notice of appeal on March 1, 1989. We dismissed the appeal for failure to prosecute on June 28, 1989. Apparently unaware of this dismissal, Harrison also filed a motion for voluntary dismissal of his appeal on August 1, 1989.

Following his direct appeal, Harrison attempted to challenge his conviction and sentence by means of motions under § 2255 and petitions under § 2241. The history of Harrison's collateral challenges to his conviction must be understood in the context of these two bases for collateral relief from federal sentences, § 2255 and § 2241, and the limitations Congress has imposed on these forms of relief.

A

As a general rule, "§ 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention." Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir.2000). Section 2255 allows a federal prisoner claiming that his sentence was imposed "in violation of the Constitution or laws of the United States" to "move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. A prisoner may not bring a second or successive § 2255 motion in district court unless "a panel of the appropriate court of appeals" certifies that the motion contains:

(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. Nor may a prisoner appeal the denial of a § 2255 motion unless this court or the district court issues a certificate of appealability (COA) under § 2253(c).³ 28 U.S.C. § 2253(c)(B). Such a certificate may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Id.

"Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court." Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.2000). There is an exception, however, set forth in § 2255: A federal prisoner may file a habeas petition under § 2241 to challenge the legality of a sentence when the prisoner's remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255. "We refer to this section of § 2255 as the `savings clause,'" or the "escape hatch." Hernandez, 204 F.3d at 864 n. 2; Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.2006) (internal quotation marks omitted). If a prisoner's claims qualify for the escape hatch of § 2255, the prisoner may challenge the legality of a sentence through a § 2241 petition in the custodial court. Hernandez, 204 F.3d at 865.

B

In February 1992, Harrison filed his first § 2255 habeas petition in the sentencing court. The sentencing court denied the motion as procedurally barred due to Harrison's failure to pursue his direct appeal. We affirmed the district court's ruling in November 1994.

In August 1999, Harrison filed a second habeas petition in the sentencing court to vacate his sentence under § 2255. The judges of the Southern District of California recused themselves, and we assigned the case to Judge James K. Singleton, of the District of Alaska.

While this petition was pending, the Supreme Court issued its opinion in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), holding that the phrase "used in an activity affecting commerce" for purposes of § 844(i) required "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Jones, 529 U.S. at 855, 120 S.Ct. 1904. Applying this definition, the Court held that a defendant could not be convicted of violating § 844(i) for damaging a private residence "owned and occupied ... for everyday family living." Id. at 859, 120 S.Ct. 1904.

In September 2000, Judge Singleton dismissed Harrison's petition on the ground that it was a second or successive motion, requiring Harrison to obtain a certificate pursuant to § 2255 before he could file it. We denied Harrison's request for certification of this petition in May 2001.

In July 2001, Harrison filed a petition pursuant to § 2241 in the sentencing court seeking to vacate his sentence in light of Jones v. United States. Without analyzing whether Harrison could file a § 2241 petition pursuant to the savings clause of § 2255, the sentencing court dismissed Harrison's petition for lack of jurisdiction.

Harrison thereupon filed his § 2241 petition in the custodial court. As required by Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.2000), the custodial court first considered whether Harrison's petition should be deemed to be a petition under § 2241 or a motion under § 2255. Because Harrison contested the legality of his sentence in light of Jones, he had to raise his claim by a § 2255 motion unless he met the criteria for the escape hatch.

Upon reviewing Harrison's § 2241 petition, the custodial court determined that Harrison had failed to establish that his remedies under § 2255 were inadequate or ineffective, and therefore held that Harrison's petition could not be filed under § 2241. Accordingly, the custodial court deemed Harrison's petition to be a motion under § 2255. Because jurisdiction over such a motion would lie only in the sentencing court, the custodial court transferred the case to the sentencing court.

After the petition had been transferred to the sentencing court, it was reassigned to Judge Singleton. In May 2003, Judge Singleton denied the...