Henry v. Ciolli

• Decision Date: 05 April 2021
• Docket Number: Case No. 1:20-cv-00786-AWI-EPG-HC
• Parties: HENRY LII, Petitioner, v. CIOLLI, Respondent.
• Court: U.S. District Court — Eastern District of California

HENRY LII, Petitioner, v. CIOLLI, Respondent.

Case No. 1:20-cv-00786-AWI-EPG-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

April 5, 2021

FINDINGS AND RECOMMENDATION TO DENY RESPONDENT'S MOTION TO DISMISS

(ECF No. 12)

Petitioner Henry Lii is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In the instant petition, Petitioner challenges a sentence imposed by the United States District Court for the District of Hawaii. As this Court does have jurisdiction to entertain the instant petition pursuant to the savings clause of 28 U.S.C. § 2255(e), the undersigned recommends that Respondent's motion to dismiss be denied.

I.BACKGROUND

Petitioner is currently incarcerated at the United States Penitentiary in Atwater, California, serving a life sentence imposed by the United States District Court for the District of Hawaii. (ECF No. 1 at 1¹; App. 69²). On March 15, 2006, Petitioner was charged with: (1) conspiracy to distribute and possess with intent to distribute 50 grams or more ofmethamphetamine; (2) distribution of 50 grams or more of methamphetamine; and (3) possession with intent to distribute 5 grams or more of methamphetamine. On July 7, 2006, the government filed an information under 21 U.S.C. § 851 notifying Petitioner that it would enhance his statutory mandatory minimum sentence based on Petitioner's prior felony drug convictions under Hawaii law. (App. 44-66). On August 24, 2006, Petitioner pleaded guilty to all three counts. (App. 30). During the sentencing hearing, Petitioner admitted that he was the person convicted of the two offenses set forth in the information filed under 21 U.S.C. § 851. Transcript of Sentencing at 7-8, United States v. Lii, No. CR-06-00143-JMS (D. Haw. Feb. 6, 2007), ECF No. 88.³ The United States District Court for the District of Hawaii sentenced Petitioner to an imprisonment term of life on Counts 1 and 2 and 120 months on Count 3. (App. 33, 69).

The Ninth Circuit affirmed Petitioner's convictions and sentence. United States v. Lii, 259 F. App'x 970 (9th Cir. 2007). On August 10, 2009, Petitioner filed a § 2255 motion, which was denied as untimely on January 22, 2010. (App. 85-100). On November 24, 2014, Petitioner filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). (App. 38). On December 4, 2015, the United States District Court for the District of Hawaii denied the motion. (App. 101-06). The district court also denied Petitioner's motion for reconsideration and second motion for reconsideration. (App. 40, 107-14).

Meanwhile, on September 12, 2013, Petitioner filed a § 2241 petition in this Court, arguing that his prior convictions should not serve as predicate offenses under Descamps v. United States, 570 U.S. 254 (2013). Petition, Lii v. Copenhaver, No. 1:13-cv-01508-AWI-MJS (E.D. Cal. Sept. 12, 2013), ECF No. 1.⁴ On February 20, 2015, this Court dismissed the petition, finding that Petitioner did not meet either prong of the savings clause. Lii v. Copenhaver, No. 1:13-cv-01508 AWI MJS HC, 2015 U.S. Dist. LEXIS 189652 (E.D. Cal. Feb. 20, 2015),adopting report and recommendation, 2014 U.S. Dist. LEXIS 166372 (E.D. Cal. Nov. 26, 2014). On August 16, 2017, the Ninth Circuit affirmed that Petitioner's claim did not qualify under the savings clause and dismissal was appropriate. Memorandum, Lii v. Copenhaver, No. 16-15539 (9th Cir. Aug. 16, 2017).

On June 5, 2020, Petitioner filed the instant federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1). In the petition, Petitioner asserts that he is actually innocent of his sentence of mandatory life imprisonment because his prior drug convictions are not qualifying predicate offenses under Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 570 U.S. 254 (2013), and that Petitioner did not have an unobstructed procedural shot at presenting this actual innocence claim earlier. (ECF No. 1 at 6-7). On November 13, 2020, Respondent filed a motion to dismiss, arguing that Petitioner's claim may not be raised under 28 U.S.C. § 2241 and no escape hatch exception applies. (ECF No. 12). No opposition to the motion to dismiss has been filed, and the time for doing so has passed.

II.DISCUSSION

A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam). Thus, a district court must address the threshold question whether a petition was properly brought under § 2241 or § 2255 in order to determine whether the district court has jurisdiction. Id. A federal prisoner who wishes to challenge the validity or constitutionality of his federal conviction or sentence must do so by moving the court that imposed the sentence to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Alaimalo v. United States, 645 F.3d 1042, 1046 (9th Cir. 2011). "The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241." Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citations omitted).

Nevertheless, a "savings clause" or "escape hatch" exists in § 2255(e) by which a federal prisoner may seek relief under § 2241 if he can demonstrate the remedy available under § 2255to be "inadequate or ineffective to test the validity of his detention." Alaimalo, 645 F.3d at 1047 (internal quotation marks omitted) (quoting 28 U.S.C. § 2255); Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008); Hernandez, 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a very narrow exception. See Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). The remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or because a remedy under § 2255 is procedurally barred. Id. The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).

A petitioner may proceed under § 2241 pursuant to the savings clause when the petitioner "(1) makes a claim of actual innocence, and (2) has not had an 'unobstructed procedural shot' at presenting that claim." Stephens, 464 F.3d at 898 (citing Ivy, 328 F.3d at 1060).

A. Descamps and Mathis

At the outset, the Court will set forth the background of the issues underlying Petitioner's actual innocence claim and the Supreme Court's decisions in Descamps and Mathis.

Various federal statutes and the United States Sentencing Guidelines impose enhanced sentences on certain defendants who have prior convictions for certain offenses. See, e.g., 18 U.S.C. § 924(e) (imposing fifteen-year mandatory minimum instead of otherwise applicable ten-year statutory maximum on persons who violate 18 U.S.C. § 922(g) and have three previous convictions for a "violent felony" or "serious drug offense"); 21 U.S.C. § 841(b)(1)(A) (enhancing mandatory minimum by five years on persons who violate 21 U.S.C. § 841(a) involving quantities set forth in § 841(b)(1)(A) after one prior conviction for a "serious drug felony" or "serious violent felony"); U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 4B1.1 (career offender sentencing enhancement).

"To determine whether a past conviction is for one of those [sentence-enhancing] offenses, courts compare the elements of the crime of conviction with the elements of the 'generic' version of the . . . offense—i.e., the offense as commonly understood." Mathis, 136 S. Ct. at 2247. The Supreme Court has consistently "held that the prior crime qualifies as a[ sentence-enhancing] predicate if, but only if, its elements are the same as, or narrower than,those of the generic offense." Id. "To determine whether a prior conviction is for [a] generic [offense] courts apply what is known as the categorical approach: They focus solely on whether the elements of the crime of conviction sufficiently match the elements of [the] generic [offense], while ignoring the particular facts of the case." Mathis, 136 S. Ct. at 2248 (citing Taylor v. United States, 495 U.S. 575, 600-01 (1990)). "The comparison of elements that the categorical approach requires is straightforward when a statute sets out a single (or 'indivisible') set of elements to define a single crime. The court then lines up that crime's elements alongside those of the generic offense and sees if they match." Mathis, 136 S. Ct. at 2248.

"Some statutes, however, have a more complicated (sometimes called 'divisible') structure, making the comparison of elements harder. A single statute may list elements in the alternative, and thereby define multiple crimes." Mathis, 136 S. Ct. at 2249 (citing Descamps, 133 S. Ct. at 2283). The Supreme "Court approved the 'modified categorical approach' for use with statutes having multiple alternative elements." Mathis, 136 S. Ct. at 2249 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)). "Under that approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Mathis, 136 S. Ct. at 2249 (citing Shepard, 544 U.S. at 26; Taylor, 495 U.S. at 602). "The court can then compare that crime, as the categorical approach commands, with the relevant generic offense." Mathis, 136 S. Ct. at 2249.

Descamps involved the "Armed Career Criminal Act (ACCA or Act), 18 U.S.C. § 924(e), [which] increases the sentences of certain federal defendants who have three prior convictions 'for a violent felony,' including 'burglary, arson, or extortion.'" 570 U.S. at 257. Descamps was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and the government sought an enhanced sentence under...