Lorentsen v. Hood

• Decision Date: 06 March 2000
• Docket Number: No. 99-35147,99-35147
• Citation: 223 F.3d 950
• Parties: (9th Cir. 2000) DONALD LORENTSEN, Petitioner-Appellant, v. ROBERT A. HOOD, <A HREF="#fr1-1" name="fn1-1">1 Warden, Federal Correctional Institution Sheridan OR, Respondent-Appellee. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 950

223 F.3d 950 (9th Cir. 2000)

DONALD LORENTSEN, Petitioner-Appellant, v. ROBERT A. HOOD,¹ Warden, Federal Correctional Institution Sheridan OR, Respondent-Appellee.

No. 99-35147

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted March 6, 2000--Portland, Oregon

Filed August 11, 2000

Michael R. Levine, Assistant Federal Public Defender, Portland, Oregon, for the petitioner-appellant.

Thomas E. Flynn, Assistant United States Attorney, Chief of Appeals, Sacramento, California, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon, D.C. No. CV-97-00897-MA; Malcolm F. Marsh, District Judge, Presiding

Before: John T. Noonan, Susan P. Graber, and Raymond C. Fisher, Circuit Judges.

GRABER, Circuit Judge:

Petitioner Donald Lorentsen appeals from the judgment of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. S 2241. We hold that the district court lacked jurisdiction, and we remand the case with instructions to dismiss the petition.

FACTUAL BACKGROUND

After a lengthy investigation, narcotics officers executed a search warrant at a residence in Fresno County, California. When the officers announced their presence, Petitioner emerged from a shed on the property with a pistol in his hand. He was arrested.

Inside the shed, the officers discovered methamphetamine, weapons, and drug paraphernalia. They also found a key ring that was marked with Petitioner's name. One of the keys on the ring fit the ignition of a pickup truck that was parked nearby. Inside a locked toolbox that was contained within a larger storage box in the bed of the truck, the officers found a short-barreled shotgun.

During the surveillance that led to this search, officers had observed Petitioner driving the pickup truck several times and had seen the truck parked outside Petitioner's motel room. On the day of the search, however, Petitioner had been seen driving a different car, and no witness testified that Petitioner had driven the truck that day.

PROCEDURAL HISTORY

Petitioner was indicted on multiple counts. In Count 4, the grand jury charged that Petitioner "did knowingly use and carry a firearm, to wit, [the short-barreled shotgun], all in violation of Title 18, United States Code, Section 924(c)(1)."

Petitioner was convicted of each charged offense, including Count 4. The district court sentenced Petitioner to a total of 212 months' imprisonment, 120 months of which were for Count 4.²

On direct appeal, we affirmed Petitioner's convictions and sentence, and the Supreme Court denied his petition for a writ of certiorari. See United States v. Rafanan, 976 F.2d 739 (9th Cir. 1992) (table) (affirming the convictions and sentences of both Petitioner and his co-defendant Alfred Rafanan), cert. denied sub nom. Lorentsen v. United States, 507 U.S. 939 (1993).

More than two and one-half years later, Petitioner filed a pro se motion under 28 U.S.C. S 2255. He claimed, in part, that his trial and appellate counsel had been constitutionally ineffective for failing to argue that the evidence was insufficient to support his conviction on Count 4. Specifically, Petitioner contended that his lawyers should have argued that "[t]he phrase `uses or carries a firearm' means having a firearm, or firearms, available to assist or aid in the commission of the alleged crimes."

While Petitioner's motion under S 2255 was pending, the Supreme Court decided Bailey v. United States , 516 U.S. 137 (1995). Under the definition of "use" of a firearm set forth in Bailey, which requires "active employment " of the gun, id. at 142, Petitioner did not "use" the shotgun. ³

The district court denied Petitioner's S 2255 motion on February 1, 1996. Petitioner did not appeal.

On June 3, 1996, Petitioner and the government filed a stipulation that Petitioner's "underlying conduct with respect to Count 4" was insufficient to show that he had "use[d]" the shotgun under Bailey. The parties also stipulated that the evidence was insufficient to show that Petitioner had "carr[ied]" the shotgun under our decision in United States v. Hernandez, 80 F.3d 1253 (9th Cir. 1996). In that case we held that, "in order to be convicted of `carrying' a gun in violation of section 924(c)(1), the defendant must have transported the firearm on or about his or her person. This means the firearm must have been immediately available for use by the defendant." Id. at 1258 (citation omitted).

The district court construed the stipulation as a second or successive motion under S 2255. The court then ruled that it lacked jurisdiction to consider the successive motion because Petitioner had failed to obtain prior certification from this court, as required by 28 U.S.C. SS 2244(b)(3) and 2255.

Petitioner moved in this court for certification of his second or successive motion under S 2255 and, in United States v. Lorentsen, 106 F.3d 278 (9th Cir. 1997) (Lorentsen I), we denied the motion for certification. Under AEDPA, a second or successive S 2255 motion may be certified only if based on "newly discovered evidence" or "a new rule of constitutional law . . . that was previously unavailable." In Lorentsen I, we concluded that Petitioner's Bailey claim was a statutory claim that was based neither on "newly discovered evidence" nor on "a new rule of constitutional law."

After we issued our decision in Lorentsen I, Petitioner filed this petition for a writ of habeas corpus under 28 U.S.C. S 2241. Initially, the district court vacated Petitioner's conviction on Count 4, concluding that, under Bailey , Petitioner had not "use[d]" the short-barreled shotgun. On August 3, 1998, however, the district court granted the government's motion to reconsider in the light of Muscarello v. United States, 524 U.S. 125 (1998), which held that a firearm was "carr[ied]" in a vehicle even if it was not immediately accessible, thereby overruling our decision in Hernandez. The district court concluded that there was circumstantial evidence that, under Muscarello, Petitioner had carried the shotgun in the pickup truck. Because Count 4 of the indictment referred to both "us[ing]" and "carry[ing]" the shotgun, the court reasoned, Petitioner's conviction on that count was valid.

This timely appeal ensued.

DISCUSSION

As we held in Lorentsen I, Petitioner's Bailey claim may not be presented by a second or successive motion under S 2255 because Congress has determined that second or successive motions may not contain statutory claims. The issue here is whether Petitioner can avoid that limitation by petitioning for relief under the habeas statute, S 2241.

In general, S 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention. See United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (holding that, in general, "[a ] federal prisoner authorized to seek relief under section 2255 may not petition for habeas corpus relief pursuant to section 2241"). However, S 2255 contains the following "escape hatch," which is the focus of the parties' arguments in this case:

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.

(Emphasis added.)

Moore v. Reno, 185 F.3d 1054 (9th Cir. 1999), establishes a baseline rule that S 2241 is not available under the inadequate-or-ineffective-remedy escape hatch ofS 2255 merely because the court of appeals refuses to certify a second or successive motion under the gatekeeping provisions of S 2255. In Moore, the defendant had filed five S 2255 motions. The fifth motion came after the enactment of AEDPA; the district court dismissed it because this court had not authorized it as required by 28 U.S.C. SS 2244(b)(3) and 2255. The defendant then filed a petition for a writ of habeas corpus under 28 U.S.C. S 2241. The district court dismissed the petition because the defendant "had failed to show that S 2255 was an inadequate remedy." Id. at 1055. This court affirmed, holding that "the dismissal of a subsequent S 2255 motion pursuant to 28 U.S.C. S 2244(b) does not render federal habeas relief an ineffective or inadequate remedy." Id. Thus, the general rule in this circuit is that the ban on unauthorized second or successive petitions does not per se make S 2255 "inadequate or ineffective."

Although it provides a starting point, Moore does not resolve the parties' dispute, because it does not discuss the circumstances in which a habeas petitioner may be eligible to establish an exception to the general rule. Petitioner argues that S 2255 is "inadequate or ineffective " as applied to him because he is innocent of the crime for which he has been confined but has had no prior opportunity to test the legality of that confinement (because Bailey was decided after his conviction became final). We have not considered when, or whether, a federal prisoner may resort to S 2241 in order to avoid the limitations on second or successive petitions contained in S 2255. Other circuits have held that, in limited circumstances, such resort is allowable. See, e.g. , Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999); In re Davenport, 147 F.3d 605 (7th Cir. 1998); Triestman v. United States, 124 F.3d 361 (2d Cir. 1997); In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). Although the precise formulations vary, each of those cases holds, in essence, that a federal prisoner who is "actually innocent" of the crime of conviction, but who never has had "an unobstructed procedural shot" at presenting a claim of innocence, may resort to S 2241 if the possibility of...