Tate v. Rios, Case No.: 1:12-cv-00223-JLT

• Decision Date: 24 July 2012
• Docket Number: Case No.: 1:12-cv-00223-JLT
• Court: U.S. District Court — Eastern District of California
• Parties: TOM AARON TATE, Petitioner, v. H. A. RIOS, Warden, Respondent.

TOM AARON TATE, Petitioner,

v.H. A. RIOS, Warden, Respondent.

Case No.: 1:12-cv-00223-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date: July 24, 2012

ORDER GRANTING MOTION TO DISMISS

PETITION FOR WRIT OF HABEAS CORPUS (Doc. 12)

ORDER DISMISSING PETITION FOR WRIT OF

HABEAS CORPUS (Doc. 1)

ORDER DIRECTING CLERK OF COURT TO

ENTER JUDGMENT AND CLOSE FILE

NO CERTIFICATE OF APPEALABILITY IS

REQUIRED

Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The instant petition was filed on February 16, 2012. (Doc. 1). The record indicates that on May 5, 1995, Petitioner was convicted in the United States District Court for the Western District of North Carolina, of the following crimes: (1) five counts of conspiracy to obstruct, delay, and affect commerce by robbery (18 U.S.C. § 1951); (2) four counts of using and carrying a firearm (18 U.S.C. § 924( c); and (3) two counts of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1). (Doc. 12, Ex. B). Petitioner was sentenced to a term of 960 months. (Id.).

Petitioner appealed his conviction to the United States Court of Appeals, Fourth Circuit, which, on August 31, 1998, in an unpublished opinion, affirmed his conviction and sentence. United States v.Tate, 163 F.3d 600 (4th Cir. 1998). On September 15, 1999, Petitioner filed a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255 in the sentencing court that was subsequently denied on February 10, 2001. (Id.). In his petition, Petitioner indicates that the grounds for the § 2255 motion were that (1) Petitioner is actually innocent of the weapons crime set forth in 18 U.S.C. § 924(c) pursuant to Bailey v. United States, 516 U.S. 137 (1995). (Doc. 1, p. 4).

As mentioned, the instant petition was filed on February 16, 2012, contending, as he did previously, that he is actually innocent of the charges under § 924(c), pursuant to Bailey, and that the United States Supreme Court's decision in Abbott v. United States, ___ U.S. ___, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010), should be retroactively applied to his conviction. (Doc. 1). On March 7, 2012, the Court ordered Respondent to file a response to the petition. (Doc. 5). On May 17, 2012, Respondent filed the instant motion to dismiss the petition, contending that the Court lacks habeas jurisdiction because Petitioner is challenging his sentence, not its execution. (Doc. 12). On June 14, 2012, Petitioner filed an opposition to the motion to dismiss. (Doc. 13). Previously, Petitioner had filed his written consent to the jurisdiction of the United States Magistrate Judge for all purposes on February 27, 2012. (Doc. 4). Similarly, Respondent filed a written consent to the jurisdiction of the United States Magistrate Judge for all purposes on May 4, 2012. (Doc. 8).

For the reasons set forth below, the Court agrees with Respondent that it lacks jurisdiction because Petitioner is challenging his conviction and sentence; hence, the action should have been brought as a motion to set aside judgment pursuant to 28 U.S.C. § 2255 in the sentencing court. Accordingly, the Court will grant the motion to dismiss and dismiss the petition for writ of habeas corpus.

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). 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 (9th Cir.1988); Thompson v. Smith, 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing courthas 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 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980).

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. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476, 478-79 (3rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).

Petitioner's allegation that he should not have been convicted of the weapons charge contained in § 924(c) because he did not "actively employ" the firearm because it did not contain a firing pin is a clear and obvious challenge to his conviction. Normally, the proper vehicle for challenging such a mistake, as discussed previously, 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 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 (9th Cir.2000); United States v. Pirro, 104 F.3d 297, 299 (9th 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 (9th 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 (9th Cir. 2000) (same); Tripati, 843 F.2d at 1162-63 (9th 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 (9th Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 (9th Cir.1956);see United States v. Valdez-Pacheco, 237 F.3d 1077 (9th 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 (9th Cir. 1963).

In Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003), 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 10601061. 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 (9th 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 1060-1061.

Here, Petitioner contends that he is both "actually innocent" of the charges and that he has not had a clear procedural shot at raising his claims, such that he is entitled to proceed by a § 2241 petition rather than with a motion under § 2255. For the following reasons, the Court does not agree.

First, Petitioner has failed to establish his actual innocence. "To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604 (1998)(quoting Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851 (1995)); Stephens v. Herrera, 464 F.3d 895, 898 (9th cir. 2008). "[A]ctual innocence means factual innocence, not mere legal insufficiency" and "in cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges."Bousley, 523 U.S. at 623-624 (emphasis supplied). However, a petitioner's obligation to demonstrate actual innocence is limited to crimes actually charged or consciously forgone by the Government in the course of plea bargaining. See, e.g., id. at 624 (rejecting government's argument that defendant had to demonstrate actual innocence of both "using" and "carrying" a firearm where the indictment only charged using a firearm).

Although the United States Supreme Court has not provided much guidance regarding the nature of an "actual innocence" claim, the standards announced by the various circuit courts contain two basic features: actual innocence and retroactivity. E.g., Reyes-Requena v. United States, 243 F.3d 893, 903 (5th Cir. 2001); In re Jones, 226 F.3d 328 (4th Cir. 2000); In re Davenport, 147 F.3d 605 (7th Cir. 1998); Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997); In re Hanserd, 123 F.3d 922 (6th Cir. 1997); In re Dorsainvil, 119 F.3d...