Opinion
Petition filed on June 26, 2006.
ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO DISMISS
DEAN D. PREGERSON, United States District Judge.
This matter comes before the Court on Respondent's Motion to Dismiss Petitioner Anthony Earl Mitchell's pro se petition for writ of habeas corpus by a person in federal custody filed under 28 U.S.C. § 2241. The issue presented is whether the "savings clause" of 28 U.S.C. § 2255 is applicable to this case. The Court finds that the § 2255 savings clause does apply as concerns Petitioner's claim of actual innocence. After reviewing the papers submitted by the parties, the Court grants in part Respondent's Motion to Dismiss and denies the Motion as concerns Petitioner's claim of actual innocence.
I. LEGAL STANDARD
Petitioner seeks to bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 to challenge the legality of his conviction. Petitioner can only bring a § 2241 petition, however, if the "savings clause" of 28 U.S.C. § 2255 is applicable to Petitioner's case.
In general, "§ 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 or conviction 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. The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") added "gatekeeping" provisions to § 2255, which restricts when such petitions may be filed. Namely, petitions are subject to a one-year statute of limitations, and further, if the sentencing court denies a petitioner's § 2255 motion, any subsequent § 2255 motion must be denied as a second or successive petition unless the court of appeals certifies the motion.
After once filing a § 2255 petition, 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:
Traditional habeas corpus petitions filed under § 2241 are generally unavailable to federal prisoners wishing to challenge the legality of their convictions. See 28 U.S.C. § 2255. Instead, a prisoner may file a § 2241 petition, in the district in which he or she is incarcerated, only to challenge the manner, location, or conditions of a sentence's execution. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Therefore, normally Petitioner would not be able to file a § 2241 motion to challenge, as he does here, the legality of his conviction.
There is, however, an exception contained in § 2255 that allows a federal prisoner to file a § 2241 habeas petition 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. The Ninth Circuit "refer[s] to this provision of § 2255 as the 'savings clause,'" Hernandez, 204 F.3d at 864 n.2, or the "escape hatch," Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (internal quotation marks omitted). In the instant case, Petitioner seeks to file a § 2241 petition because any further § 2255 motions would be denied as a second or successive motion or as untimely. A motion that would otherwise be barred as second or successive if filed under § 2255 may be filed under § 2241 with no adverse consequences to petitioner. See In re Dorsainvil, 119 F.3d 245, 252 (3d Cir. 1997) (sentencing court's denial of motion for certification to file a successive § 2255 petition is "without prejudice to [petitioner's] right to file a petition . . . pursuant to 28 U.S.C. § 2241 in a district court in the district of his confinement."). Thus, if Petitioner's situation falls under the § 2255 savings clause, his Petition is not barred by the gatekeeping provisions of § 2255, and therefore may proceed.
AEDPA also limits second and successive § 2241 habeas petitions brought by federal prisoners. See 28 U.S.C. 2244(a) . However, Petitioner has to this point filed only § 2255 petitions. The instant § 2241 petition is thus not barred. Cf. Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997) ("Because Sections 2255 and 2241 address different types of claims, filing a Section 2255 motion after filing a Section 2241 motion does not trigger the gatekeeping provision of Section 2244.").
III. BACKGROUND
On November 10, 1992, a jury convicted Petitioner of cocaine base possession with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and using or carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). (Pet. at 1, 3, Ex. 1 at 1-2.) On March 11, 1993, the District Court for the Western District of Louisiana ("sentencing court") sentenced Petitioner to 188 months in prison for the drug trafficking crime and 60 months in prison for the firearm enhancement, with the two sentences to run consecutively. (Pet. Ex. 1 at 4.) The Fifth Circuit Court of Appeals affirmed Petitioner's conviction on direct appeal in November 1993. (Pet. at 3.)
18 U.S.C. § 924(c)(1) states:
On April 28, 1997, Petitioner, proceeding pro se, filed a document entitled "Motion to Extend Filing Deadline of Motion to Vacate Judgment of Conviction and Sentence Pursuant to 28 U.S.C. § 2255" ("Initial § 2255 Motion"). The sentencing court, without explanation, denied the motion in a brief order on July 7, 1997. (Pet. Ex. G1 at 2.) On April 21, 2000, Petitioner filed a second document entitled "Motion for Leave of Court to File Out of Time Appeal Under Title 28 U.S.C. § 2255" ("Subsequent § 2255 Motion"). (Pet. Ex. G2.) On November 20, 2000, the sentencing court likewise denied this Subsequent § 2255 Motion, concluding that it was untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") one-year statute of limitations. (Pet. Ex. G1 at 3.) However, the sentencing court commented that "even if this court may not entertain his § 2255 Motion, relief may be available under § 2241 in the district court" under the savings clause.(Pet. Ex. G1 at 8.) On September 14, 2001, the Fifth Circuit Court of Appeals denied Petitioner's request for a Certificate of Appealability ("COA") of the denial of his Subsequent § 2255 Motion. (Pet. Reply at 6.)
Under AEDPA, federal prisoners are required to bring a collateral attack under § 2255 within one year of the date their conviction becomes final. See 28 U.S.C. § 2255. Like all defendants whose convictions became final before AEDPA's enactment, Petitioner was entitled to a one-year grace period after AEDPA's effective date to file his § 2255 motion. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) . That period expired on April 29, 1997. Petitioner's Subsequent § 2255 motion, filed on April 21, 2000, was filed well beyond the expiration of the statute of limitations. Moreover, a separate one-year extension of time is allowed when a defendant seeks to bring a § 2255 motion based on a new right the Supreme Court has recognized to apply retroactively to cases on collateral review. 28 U.S.C. § 2255(f)(3). The limitations period for such claims is one year from the recognition of the new right. Id. Petitioner, to argue his claim of actual innocence, relies upon a statutory rule made retroactive in Bousley v. United States, 523 U.S. 614, 620 (1998), a case decided on May 18, 1998. Accordingly, Petitioner's initial § 2255 motion was filed before the decision in Bousely, but his subsequent § 2255 petition was filed more than a year after the 1998 decision.
Additionally, the court held Petitioner was not entitled to equitable tolling as to his claims. (Pet. Ex. G1 at 6.) In the instant Petition, Petitioner does not seek equitable tolling.
Petitioner was sent to the Federal Correctional Institution-Lompoc, in Lompoc, California, and from there, proceeding pro se, filed the instant motion on June 26, 2006. Respondent filed a Motion to Dismiss the instant petition on November 13, 2006. Petitioner filed a reply to Respondent's Motion to Dismiss on December 7, 2006.
IV. DISCUSSION
The instant Petition raises four grounds for relief: (1) Petitioner is actually innocent of the crime of using or carrying a firearm in connection with a drug trafficking charge under 18 U.S.C. § 924(c)(1), per the holding of Bailey v. United States, 516 U.S. 137 (1995); (2) the sentencing court made an improper constructive amendment to the conspiracy indictment in its charge to the jury; (3) the sentencing court divested itself of jurisdiction by giving an improper indictment to the jury; and (4) Petitioner received ineffective assistance of trial and appellate counsel. (Pet. at 5-6.)
For the reasons detailed below, this Court finds the savings clause of § 2255 applicable to claim one of the instant Petition.
A. The § 2255 Savings Clause Applies and Petitioner's § 2241 Petition May Proceed as to the Actual Innocence Claim
The Court must decide the threshold question of whether the instant Petition was properly filed pursuant to 28 U.S.C. § 2241, or whether it must instead be filed as a 28 U.S.C. § 2255 motion in the Western District of Louisiana. See Hernandez, 204 F.3d at 865-66. If the Petition falls under § 2255's savings clause, then it is properly characterized as a § 2241 petition and this Court possesses jurisdiction over it. However, if the savings clause does not come into play, then the Petition must be construed as a petition under § 2255, and jurisdiction lies only in the Western District of Louisiana, where Petitioner was sentenced. Id.
As discussed in greater detail below, this Court finds the savings clause of § 2255 is applicable to the instant Petition, but only as to Petitioner's claims of actual innocence. Thus, although the Petition challenges the legality of Petitioner's conviction, it is correctly filed as a § 2241 motion.
Respondent contends that Petitioner failed to take advantage of an unobstructed procedural opportunity at presenting his claim of actual innocence. However, Respondent fails to account for Petitioner's Initial § 2255 Motion, which barred any subsequent filing under § 2255 as a second or successive petition. Taking the Initial § 2255 Motion into consideration, this Court finds that the instant Petition meets the stringent requirements the Ninth Circuit has outlined for application of the savings clause.
Petitioner was convicted in 1992 of violating § 924(c) by "using or carrying" a firearm during the commission of a drug trafficking crime. In Bailey v. United States, 516 U.S. 137, 143 (1995), the Supreme Court interpreted the "use" prong of § 924(c) as requiring "more than mere possession of a firearm by a person who commits a drug offense." The Court explained that "§ 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Id. Thus, the High Court held that "mere possessors [of firearms] convicted before Bailey of use really were convicted of a nonexistent crime[.]" In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). In Bousley, 523 U.S. at 620, the Supreme Court held that the Bailey decision would apply retroactively to cases on collateral review.
Accordingly, under the current standard, to prove that a defendant possessed a firearm in furtherance of a drug trafficking crime in violation of § 924(c)(1), the government must show that (1) the defendant participated in the conspiracy to traffic in drugs; (2) the defendant possessed the firearm; and (3) defendant's possession of the firearm was "in furtherance" of the drug trafficking conspiracy. See United States v. Rios, 449 F.3d 1009, 1012 (9th Cir. 2006); United States v. Mann, 389 F.3d 869, 879 (9th Cir. 2004). In the post-Bailey era, mere possession of a firearm by an individual convicted of a drug crime is not sufficient for a rational trier of fact to convict under § 924(c)(1). See Mann, 389 F.3d at 879-80; United States v. Krouse, 370 F.3d 965, 967 (9th Cir. 2004). Instead, the government must show that the defendant intended to use the firearm to promote or facilitate the drug crime. See Krouse, 370 F.3d at 967. Finally, the Ninth Circuit does not permit reliance solely on the nature of the firearms themselves. See Mann, 389 F.3d at 880 (holding that the possession of "inherently dangerous" firearms that are "generally lacking in usefulness except for violent and criminal purposes" does not satisfy the "in furtherance of" element of § 924(c)(1)).
The Ninth Circuit has held that a motion meets the savings clause criteria of § 2255 "when a 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 (internal citations omitted). In determining whether a petitioner had an unobstructed procedural shot to pursue his claim, the court must ask whether petitioner's claim "did not become available" until after the sentencing court's decision. Id. at 898. In other words, this Court considers: "(1) whether the legal basis for petitioner's claim Mid 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 his first § 2255 motion." See Harrison, 519 F.3d at 960 (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060-61 (9th Cir. 2003)). Petitioner's situation meets these narrow criteria.
First, Petitioner has made a good faith claim of 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, 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). "'Actual innocence' means factual innocence, not mere legal insufficiency." Id. Petitioner has shown that the Government's witnesses at trial testified that they never observed a gun on Petitioner's person. (Pet. Ex. A, B.) Petitioner has thus presented a valid basis for his claim of actual innocence.
Second, the legal basis for Petitioner's instant innocence was not available previously. Petitioner's appeal was denied in 1993, and his Initial § 2255 Motion was denied in 1997. Petitioner was unable to raise his Bailey innocence claim in either motion because it was not until 1998 that Bousley made Bailey retroactive. Accordingly, the legal basis for Petitioner's actual innocence claim did not become available until after the exhaustion of his direct appeal and the denial of his Initial § 2255 Motion. Furthermore, the Bousley decision fundamentally changed the law relevant to Petitioner's innocence claim. Prior to Bousley, it was unclear whether Bailey applied retroactively. See United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir. 1997) (noting that a decision on Bailey's retroactivity "has not yet been made by the Supreme Court[.]").
Respondent argues that Petitioner cannot invoke the savings clause because he had an "unobstructed procedural shot" at bringing his innocence claim and failed to take advantage of it. (Resp't Mot. to Dismiss at 6.) Respondent contends that Petitioner had one year after the 1998 Bousley decision to bring his claim, but that he neglected to do so until his untimely Subsequent § 2255 Motion in 2000. (Resp't Mot. to Dismiss at 6-7.) However, Respondent's argument fails to recognize that Petitioner's Initial § 2255 Motion was filed in 1997, a year before Bousley. Petitioner therefore could not have presented his Bailey innocence claim in his Initial § 2255 Motion. Further, Respondent errs to the extent he argues that Petitioner could have obtained certification to file a second or successive petition after Bousely. As discussed, such certification is authorized only upon a showing of newly discovered evidence or a retroactive new rule of constitutional law. 28 U.S.C. § 2255. Bailey and Bousely, however, announced a new statutory rule. See Lorentsen, 106 F.3d at 279 (stating that Supreme Court decision in Bailey announced a new statutory interpretation). Therefore, because his Initial § 2255 Motion was denied in 1997, Petitioner lacked the opportunity to bring his innocence claim until the instant § 2241 Petition.
Respondent does not appear to recognize that Petitioner's Initial § 2255 Motion was in fact a § 2255 petition. Although this pro se motion was entitled "Motion to Extend Filing Deadline of Motion to Vacate Judgment of Conviction and Sentence Pursuant to 28 U.S.C. § 2255," a review of the motion's substance shows that it itself sought to vacate Petitioner's allegedly "unlawful sentence and deprivation of his liberty[.]" (Initial § 2255 Mot. at 1.) Petitioner wrote:
For the reason of instant petition. Petitioner Mitchell claims that his conviction and sentence [were] obtain[ed] in violation of the laws of the United States; and he seek[s] relief from the unlawful sentence and deprivation of his liberty[.]
(Initial § 2255 Mot. at 1 (emphasis added).)
To the extent that the motion is ambiguous, the Court adheres to the general rule that pro se complaints and motions from prisoners are to be liberally construed. See, e.g., Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) ("[C]ourts must construe pro se pleadings liberally."); Frost v. Symington, 197 F.3d 348, 352 (9th Cir. 1999). As such, courts have occasionally characterized pro se prisoner motions as motions under 28 U.S.C. § 2255, where such a construction would benefit the petitioner. See, e.g., United States v. Johnson, 988 F.2d 941, 943 (9th Cir. 1993) (construing motion brought under Fed. R. Crim. P. 35(a) as one under 28 U.S.C. § 2255); United States v. Young, 936 F.2d 1050, 1052 (9th Cir. 1991) (same); see also Stantini v. United States, 140 F.3d 424, 426 (2d Cir. 1998) (characterizing a prisoner's earlier purported § 2255 motion as a § 2241 habeas corpus motion). Under the circumstances here, this Court construes Petitioner's 1997 motion as a § 2255 motion challenging the legality of his sentence. Cf. United States v. Seesing, 234 F.3d 456, 463 (9th Cir. 2000) (rejecting characterization of a prisoner's letter as a § 2255 motion when it was to prisoner's disadvantage).
While the sentencing court correctly denied Petitioner's Subsequent § 2255 Motion as untimely, it did not address the fact that the motion was a second or successive petition, which would have provided an alternative basis for denial. As noted, Petitioner could not have obtained certification to file a successive motion because the Bailey decision "announced only a new statutory interpretation, not a new rule of constitutional law." United States v. Lorentsen, 106 F.3d at 279. Therefore, Petitioner's Subsequent § 2255 Motion was doomed from the start as inadequate to address his innocence claim.
A number of courts have held that 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. See Reyes-Requena v. United States, 243 F.3d 893, 903 (5th Cir. 2001); In re Jones, 226 F.3d 328, 334 (4th Cir. 2000); In re Davenport, 147 F.3d at 609-11; Triestman v. United States, 124 F.3d 361,363 (2d Cir. 1997); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). Each of these cases involved petitioners who had filed their first § 2255 motions prior to Bailey, thus barring any subsequent § 2255 motions as second or successive petitions. Each court held the § 2255 savings clause allowed the petitioner to use § 2241 to present his claims.
Like the petitioners in those cases, Petitioner here also lacked an "unobstructed procedural shot" at presenting his claim of actual innocence. Petitioner was convicted in 1992, lost his appeal in 1993, and filed his Initial § 2255 Motion in 1997, a year prior to Bousley, which held Bailey retroactive. Petition's Subsequent § 2255 Motion, filed in 2000, was denied as untimely, and in any event was procedurally barred as a second or successive petition. Petitioner thus "had no reasonable opportunity, either when he was convicted and appealed or later when he filed a motion for postconviction relief under section 2255, to challenge the legality of his conviction." In re Davenport, 147 F.3d at 610.
Accordingly, the savings clause of § 2255 applies to Petitioner's claim of actual innocence. Since this claim is properly presented as a § 2241 habeas petition, any issues relating to untimeliness under § 2255 are moot. This claim of may proceed.
As an additional ground for dismissal, Respondent argues that equitable tolling does not apply to any of Petitioner's claims. (Resp't Mot. to Dismiss at 9.) Respondent also requests that this Court deny any motion for a COA. (Resp't Mot. to Dismiss at 9.) This argument is predicated on construing the instant Petition as a § 2255 motion. The Petitioner did not raise an equitable tolling argument, and does not request a COA. Since this Court construes the instant Petition as one brought under § 2241, Respondent's equitable tolling argument and request for a denial of a COA are moot.
B. The Savings Clause Does Not Apply to Grounds Two, Three, and Four
Respondent contends that Petitioner's remaining claims are time-barred and must be dismissed. Petitioner's second and third grounds for relief, challenging the manner in which the sentencing court presented the indictment to the jury, and his fourth ground, alleging inadequate assistance of trial and appellate counsel, do not involve claims of actual innocence. As such, they do not qualify for the § 2255 savings clause. See Ivy, 328 F.3d at 1059- 61. Petitioner had an "unobstructed procedural shot" at presenting these claims in his Initial § 2255 Motion. Moreover, Petitioner presented nearly identical claims in his Subsequent § 2255 Motion. (Pet. Ex. G2.) Petitioner has failed to show that his remedy under § 2255 is "inadequate or ineffective" to test the legality of these three grounds for relief. See Ivy, 328 F.3d at 1059 ("[Section] 2255's remedy is not 'inadequate or ineffective' merely because § 2255's gatekeeping provisions prevent the petitioner from filing a second or successive petition.").
In his Initial § 2255 Motion, Petitioner raised, among others, the claims of: (1) ineffective assistance of counsel; (2) error in the jury instruction; and (3) that the evidence at trial was not properly presented at sentencing. (Initial § 2255 Mot. at 3.)
Therefore, the savings clause in inapplicable and Petitioner must assert these claims under § 2255. The Ninth Circuit has held that a petitioner may not circumvent the limitations imposed on successive petitions by styling his petition as one pursuant to § 2241 rather than § 2255. See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curiam). Because these claims cannot be brought under § 2241, jurisdiction lies only with the sentencing court in Louisiana. 28 U.S.C. § 2255. Therefore, these claims are dismissed for lack of jurisdiction.
V. Conclusion
For the foregoing reasons, this Court finds that the § 2255 savings clause applies as concerns Petitioner's claim of actual innocence. Petitioner's remaining claims, which do not involve actual innocence, are hereby DISMISSED for lack of jurisdiction. Accordingly, this Court GRANTS Respondent's Motion to Dismiss as to claims two, three, and four of Petition, and DENIES Respondent's Motion to Dismiss as to Petitioner's claim of actual innocence.
(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.
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
Id. (emphasis added).