NO. EDCV 19-2463-DSF (AGR)
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus, the other records on file herein, the Report and Recommendation of the United States Magistrate Judge ("Report"), and the Objections and Supplemental Objections filed by Petitioner. Further, the Court has engaged in a de novo review of those portions of the Report to which objections have been made. The Court accepts the findings and recommendation of the magistrate judge.
Petitioner contends that he is entitled to sentencing relief under the First Step Act of 2018, Publ. L. No. 115-391, 132 Stat. 5194, 5194-249 (2018), on his conviction under Count 1 of the Second Superseding Indictment. As the Report explains, Petitioner was convicted of four counts in the District of South Carolina. (Report at 2.)
The Report correctly explains that Petitioner can qualify for the "escape hatch" provisions of § 2255(e) and pursue a § 2241 petition only if he "'(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.'" Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012) (citation omitted); see also Report at 3-4.
In his objections, Petitioner does not appear to dispute the Report's finding that he had an unobstructed procedural shot at presenting his claim under the First Step Act. By order dated April 17, 2019, the sentencing court denied Petitioner's motion for reduction in sentence under the First Step Act for Count 1. "Because Defendant was convicted of a crime under § 841(b)(1)(C) (Count 1), and the enactment of the Fair Sentencing Act of 2010 did not reduce the statutory penalties associated with that conviction, he is not eligible for consideration of a reduction under the terms of the First Step Act. Further, his sentence was driven by the murder cross-reference on Count 4, not the drug weight in Count 1. Accordingly, Defendant's motion pursuant to the First Step Act (ECF No. 842) is denied." (Report at 2-3.) On July 19, 2019, the Fourth Circuit affirmed the order denying Petitioner's motion under the First Step Act and denied a certificate of appealability on the appeal from the district court's order dismissing Petitioner's § 2255 motions as successive. (Report at 3.)
Petitioner argues that he was "erroneously denied relief by his sentencing court" (and presumably by the Fourth Circuit in affirming the sentencing court's order). (Supp. Obj. at 2.) Because Petitioner actually presented his claim to the sentencing court and, on appeal, to the Fourth Circuit, he had an unobstructed procedural shot at presenting his claim. The fact that Petitioner believes the courts' rulings on the merits were erroneous is insufficient for purposes of the escape hatch. See Hays v. Tews, 771 Fed. Appx. 769, 770 (9th Cir. 2019) (affirming dismissal of § 2241 petition for lack of jurisdiction because petitioner had unobstructed procedural shot to present his claims to Fifth Circuit, which denied the claims); see also Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (finding unobstructed procedural shot when petitioner could have raised claim but did not). Moreover, the Eastern District of California previously dismissed for lack of jurisdiction Petitioner's § 2241 petition that asserted similar claims. Reid v. Lake, 2019 U.S. Dist. LEXIS 55889, *4-*5 (E.D. Cal. Apr. 1, 2019), accepted by 2019 U.S. Dist. LEXIS 145810 (E.D. Cal. Aug. 26, 2019).
The court agrees with the Report's conclusion that Petitioner also cannot show actual innocence within the meaning of the escape hatch. As the Report notes, the Ninth Circuit has not recognized a claim of actual innocence for a noncapital sentence. (Report at 4.) Petitioner makes no showing of factual innocence. Instead, Petitioner relies on legal arguments that were rejected on direct appeal by the Fourth Circuit. United States v. Reid, 523 F.3d 310, 316 (4th Cir. 2008) (rejecting argument that jury's failure to find the specific amounts of drugs charged in the indictment in Count 1 constituted an acquittal).
The Fourth Circuit noted that Petitioner "did not receive a heightened sentence under § 841(b)(1)(A) or (b)(1)(B), but rather a 20-year sentence under § 841(b)(1)(C)." Reid, 523 F.3d at 316. --------
IT THEREFORE IS ORDERED that judgment be entered denying the Petition for Writ of Habeas Corpus and dismissing this action for lack of jurisdiction. DATED: February 3, 2020
DALE S. FISCHER
United States District Judge