Opinion
Case No. 05cv1465 DMS (WMC).
February 24, 2006
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING CASE [Doc. Nos. 1, 15]
Petitioner, currently a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging his 1988 conviction and sentence in the United States District Court for the Southern District of California. For the reasons discussed below, the Petition is denied for lack of jurisdiction and the case is dismissed.
I. BACKGROUND
In 1988, Petitioner pled guilty to two counts of bombing and arson of a speedboat and motor vehicle, in violation of 18 U.S.C. § 844(i), and one count of aiding and abetting the interstate transportation of stolen property, in violation of 18 U.S.C. §§ 2 and 2314. On February 23, 1989, Petitioner was sentenced in the United States District Court for the Southern District of California, to two consecutive ten-year prison terms for the bombing and arson, which was to be followed by a five-year probationary term for aiding and abetting the interstate transportation of stolen property.
On March 1, 1989, Petitioner filed a timely notice of appeal. That appeal was dismissed by the Ninth Circuit for failure to prosecute on June 28, 1989. Unaware that his appeal had been dismissed, Petitioner sua sponte filed a motion for voluntary dismissal of appeal on August 1, 1989.
Thereafter, in February 1992, Petitioner filed a motion to vacate sentence under 28 U.S.C. § 2255. On October 27, 1993, the district court denied the motion as procedurally barred due to Petitioner's failure to pursue his direct appeal. The Ninth Circuit affirmed the district court's ruling on November 8, 1994. See Harrison v. United States, 39 F.3d 1187 (9th Cir. 1994) (unpublished disposition).
On August 19, 1999, Petitioner filed a second motion to vacate sentence under 28 U.S.C. § 2255. Subsequently, after the judges of the Southern District of California recused themselves from further involvement in the case, the Ninth Circuit reassigned Petitioner's case to the Honorable James K. Singleton, United States District Judge for the District of Alaska. On September 5, 2000, Judge Singleton issued an order dismissing the case and finding that Petitioner's § 2255 motion was a second or successive motion, thereby requiring a certificate from the Ninth Circuit prior to its filing. ( See September 5, 2005 Order at 5-6.) The Ninth Circuit affirmed the ruling on May 9, 2001.
Petitioner has filed in this case a motion reminding judges of recusal order, in which he seeks disqualification of all of all judges of the United States District Court for the Southern District of California. This Court is without conflict, and therefore the motion is denied.
On September 24, 2002, Petitioner filed a petition for writ of habeas corpus, purportedly under 28 U.S.C. § 2241, in the Central District of California. The district court reviewed Petitioner's pleading and concluded that Petitioner failed to show that the remedies provided under § 2255 were "inadequate or ineffective." Accordingly, the court treated Petitioner's pleading as a motion to vacate under § 2255 rather than as a habeas petition under § 2241. ( See April 8, 2003 Order at 3.) As such, the court lacked jurisdiction to consider the motion and transferred the case to the district where Petitioner was sentenced, the Southern District of California. Upon transfer, Judge Singleton was reassigned to the case.
On May 8, 2003, after several more pleadings and letters from Petitioner, Judge Singleton issued an order instructing the clerk of the court to close the case and not to accept any further filings from Petitioner without a certificate from the Ninth Circuit permitting a second or successive petition under § 2255. In December 2005, Petitioner requested such a certificate, but the Ninth Circuit denied his request. However, in denying the request, the Ninth Circuit noted that the denial was "without prejudice to presentation of the issues raised in his application through the filing of a § 2241 habeas corpus petition in district court," citing United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir. 1997). ( See June 21, 2005 Order at 2.)
Accordingly, on July 21, 2005, Petitioner filed the present petition under § 2241, albeit in the wrong court. Because Petitioner is presently incarcerated in state prison in the Central District, he should have filed this Petition in that district. Nonetheless, this Court has jurisdiction to determine whether Petitioner's remedies are inadequate or ineffective under § 2255, thus permitting him to proceed under § 2241.
On January 4, 2006, Petitioner filed a motion to stay the proceedings, based on his transfer from Ironwood State Prison in Blythe, California to the California Mens Colony in San Luis Obispo, California (both of which are located in the Central District of California). On January 21, 2006, Petitioner filed a "request to reactivate case." The Court therefore denies as moot Petitioner's motions for appointment of counsel or in the alternative to stay proceedings filed on November 22, 2005 and January 4, 2006.
II. DISCUSSION
Petitioner raises three substantive arguments in support of his Petition. First, Petitioner contends that Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), redefines the offense of 18 U.S.C. § 844(i) and creates a new rule of law, which renders the conduct leading to his conviction in 1988 no longer violative of that statute. Second, Petitioner argues he received incompetent legal advice from his trial counsel because he was advised to plead guilty to "nonexistent offenses," and therefore, his plea was not voluntarily and intelligently entered. Finally, Petitioner claims he received ineffective assistance of appellate counsel when he was advised to withdraw his appeal because, according to his counsel, "no meritorious issues existed." Petitioner claims that, in light of Jones, his appellate counsel failed to "grasp the meritorious appeal issue" that his conduct did not constitute a crime under § 844(i).
Before the Court may address the merits of Petitioner's claims, however, it must first determine whether Petitioner may proceed under § 2241. See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam) ("[A] court must first determine whether a habeas petition is filed pursuant to § 2241 or § 2255 before proceeding to any other issue.") To understand more fully why this determination must be made, a discussion of the interplay between Sections 2241 and 2255 is warranted.
It is well-settled that motions to contest the legality of a sentence under § 2255 must be filed in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought under § 2241 in the custodial court ( i.e., in the district where the petitioner is housed). See Hernandez, 204 F.3d at 864. In general, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of his sentence. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003) (citations omitted). A federal prisoner, however, may file a habeas petition under § 2241 if his remedy under § 2255 is inadequate or ineffective to test the legality of his confinement. See Hernandez, 204 F.3d at 864-65. The requirement that a petitioner must first demonstrate that § 2255 is "inadequate or ineffective" comes from § 2255's savings clause, which provides:
Section 2255 was enacted primarily to ease the administrative burden imposed by the jurisdictional requirement that all habeas corpus petitions be heard in the district of incarceration. Hernandez, 204 F.3d at 864, n. 4. "In enacting § 2255, however, Congress did not intend for the remedy provided to differ in scope from the traditional habeas remedy under § 2241." Id. "Rather the statute was meant to `afford the same rights in another and more convenient forum.'" Id. (citations omitted).
An application for a writ of habeas corpus on 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).
Accordingly, under § 2255's savings clause this Court must first determine whether Petitioner's remedy under § 2255 is inadequate or ineffective. If Petitioner's remedy under § 2255 is inadequate or ineffective, i.e., his claims fall within the savings clause, then Petitioner would be entitled to proceed on the merits of his habeas petition under § 2241. Such a petition, however, would have to be transferred to, and heard in, the Central District of California, as that is where Petitioner is currently housed. If, on the other hand, Petitioner's claims do not fall within the savings clause, then he would be precluded from pursuing relief under § 2241 and the case would be subject to dismissal for lack of jurisdiction.
Here, the Ninth Circuit in its opinion dated June 21, 2005, denied Petitioner's application to file a second or successive § 2255 motion, but did so without prejudice to Petitioner's "presentation of the issues" through the filing of a § 2241 habeas corpus petition, citing Lorentsen, 106 F.3d at 279. In Lorentsen, the court noted that a federal prisoner may seek relief under § 2241 only if it "appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." Id. (citations omitted). The court also noted that "[i]f [a habeas petition] is available, Lorentsen should seek it first in the district court." Id. Because the Circuit Court did not address whether Petitioner's claims fall within the savings clause of § 2255, this Court must address that issue.
In its Opposition to the Petition, Respondent argues that the Circuit Court left open only one possible avenue of relief for Petitioner: "a habeas claim under § 2241 invoking § 2255's savings clause." (Opposition at 6.) This Court agrees. Respondent, however, also argues that such a claim may "only be brought in the custodial jurisdiction, which in this case is the Central District." This argument is incorrect, in that this is a jurisdictional issue that must be decided by this Court. Hernandez, 204 F.3d. at 865.
Addressing the jurisdictional issue now also avoids further transferring of the case and promotes judicial economy. The Central District previously addressed and rejected Petitioner's attempt to file under § 2241, concluding Petitioner did not meet his burden of establishing his claims fell within § 2255's savings clause. The case was thereafter treated as a motion under § 2255 and transferred to the Southern District for adjudication. Like the Central District Court, this Court believes it has authority to address the savings clause issue as a jurisdictional matter.
Petitioner, in his Reply Memorandum, argues the "question of § 2255's inadequacy and/or ineffectiveness, based on the facts and procedural history of this case, . . . was raised, addressed, and ruled on by the Ninth Circuit Court of Appeals; implicit [is] that Court's Order granting [Petitioner] a judicial remedy by way, not of § 2255, but instead by way of § 2241 pursuant to that Court's citation to United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir. 1997). . . ." (Reply at 2). This Court, however, concludes that the Ninth Circuit — in allowing Petitioner to present the issues raised in his application through the filing of a habeas petition — has allowed Petitioner to file, but not necessarily to proceed with, habeas relief. One of the issues presented in Petitioner's Ninth Circuit application and now in this Petition, is whether his claims fall within the savings clause of § 2255. Despite Petitioner's protestations to the contrary, the Court therefore addresses this issue.
While the Ninth Circuit has not thoroughly defined what is meant by "inadequate or ineffective" under the savings clause, it has made clear that more is required than demonstrating that there is a procedural barrier to bringing a § 2255 motion. Ivy, 328 F.3d at 1059. "Specifically, the § 2255 motion is not inadequate or ineffective merely because § 2255 relief has already been denied, because petitioner has been denied permission to file a second or successive § 2255 motion, or because a second or successive § 2255 motion has been dismissed, see Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999), or because petitioner has allowed the one year statute of limitations and/or grace period to expire." United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (some citations omitted).
Petitioner does not dispute he has been barred from filing a successive § 2255 motion, and it settled that this bar — standing alone — does not render his relief under § 2255 inadequate or ineffective. Moore, 185 F.3d at 1055. Instead, Petitioner apparently argues that his claims fall within § 2255's savings clause because his claims of actual innocence cannot be adequately or effectively addressed under § 2255.
The Ninth Circuit has not yet determined whether a claim of actual innocence "entitles a petitioner who is procedurally barred from filing a second or successive motion under § 2255 to seek relief under § 2241." Ivy, 328 F.3d at 1059-60. The Ivy court noted, however, that sister circuits "have held that § 2255 provides an `inadequate or ineffective' remedy (and thus that the petitioner may proceed under § 2241) when: (1) the petitioner claims to be factually innocent of the crime for which he has been convicted, and (2) has never had an `unobstructed procedural shot' at presenting his claim." Id. at 1060. While the Ivy court did not specifically adopt this rule, it discussed the second element — unobstructed procedural opportunity to present the claim — and dismissed the § 2241 petition for lack of jurisdiction. The court concluded "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. (emphasis added). Because the petitioner in Ivy could have raised his claims on direct appeal or in his initial § 2255 motion, the court held he had "not been denied an unobstructed procedural opportunity to present it." Id. at 1061. "Consequently, the fact that [petitioner] is procedurally barred from raising it now does not mean that § 2255's remedy was `inadequate or ineffective.'" Id.; see also Abdullah v. Hedrick, 392 F.3d 957 (8th Cir. 2004) (en banc).
Similarly, Petitioner here had opportunities on direct appeal and in his initial § 2255 motion to raise the issues he now seeks to raise by way of habeas petition. This he cannot do.
In Abdullah, the Eighth Circuit addressed this same issue and concluded that even when a claim of actual innocence is asserted, relief under § 2255 is not inadequate or ineffective if the petitioner had an earlier opportunity to present the claim. After canvassing circuit decisions around the country, the court held: "That does not mean that [petitioner] took the shot, or even that he or his attorney recognized the shot was there for the taking. All the Constitution requires, if it requires that much, is that the procedural opportunity have existed." Abdullah, 392 F.3d at 957 (citation omitted).
Clearly, Petitioner could have presented his claims on direct appeal. Yet, he failed to prosecute that appeal and thereafter moved on his own to dismiss his appeal. Later, Petitioner filed his initial § 2255 motion, but it was dismissed as procedurally barred due to Petitioner's failure to pursue his claims on direct appeal. Notably, in affirming the district court's dismissal, the Ninth Circuit held:
In United States v. Monholland, 607 F.2d 1311 (10th Cir. 1979), the Tenth Circuit held in 1979 — over ten years before Petitioner was sentenced — that there was a lack of federal jurisdiction where the defendants allegedly conspired to blowup a pickup truck owned by a state judge that was not used in interstate commerce or in any activity affecting interstate commerce. The claim of legal innocence raised in Monholland involved the same statute under which Petitioner was convicted in 1989. Petitioner therefore had an opportunity to raise the same claim of legal innocence offered in Monholland in his direct appeal or in his initial § 2255 motion.
[Petitioner] pled guilty, and thus can only show cause and prejudice necessary to overcome this procedural bar by demonstrating that his plea was involuntary or that he was denied effective assistance of counsel. (citations omitted.) ¶ [Petitioner] has not argued that his plea was involuntary. Nor has he shown that his counsel's performance was deficient. [Petitioner] moved on his own to dismiss his direct appeal. Therefore, he cannot argue that his counsel prejudiced his ability to pursue these issues on direct appeal by acting so incompetently that [Petitioner's] prosecution was rendered unreliable or unfair. (citations omitted.)39 F.3d at 1187 (emphasis added).
Petitioner also apparently claims that he lacks effective or adequate remedies under § 2255 due to ineffective assistance of counsel. The problem with this argument is that Petitioner has already abandoned it by dismissing his direct appeal. In addition, "[t]here is no federal constitutional right to the effective assistance of post-conviction counsel." Abdullah, 392 F.3d at 963-64 (citing Clay v. Bowersox, 367 F.3d 993, 1005 (8th Cir. 2004)).
To the extent Petitioner may have a viable claim of innocence, something this Court does not decide, he has not been denied an unobstructed procedural opportunity to present it. He has had his opportunities. For that reason, § 2255 does not provide an inadequate or ineffective remedy. Petitioner therefore may not proceed under § 2241, and his claim is dismissed for lack of jurisdiction.
III. CONCLUSION AND ORDER
For the foregoing reasons, Petitioner's application for writ of habeas corpus is DENIED and the case is dismissed.
IT IS SO ORDERED.