Opinion
No. 13-56304
12-12-2014
LARRY DARVELL HENRICKS, Petitioner - Appellant, v. RICHARD B. IVES, Warden, Respondent - Appellee.
NOT FOR PUBLICATION
D.C. No. 2:12-cv-09508-FMO MEMORANDUM Appeal from the United States District Court for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Before: HAWKINS, McKEOWN, and FRIEDLAND, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Federal prisoner Larry Darvell Henricks appeals pro se from the district court's judgment dismissing his 28 U.S.C. § 2241 habeas corpus petition. We review de novo the dismissal of a section 2241 petition, see Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011), and we affirm.
Henricks contends that he is actually innocent under Bailey v. United States, 516 U.S. 137 (1995), of using and/or carrying a firearm, in violation of 18 U.S.C. § 924(c)(1), and he therefore should be allowed to proceed with his section 2241 petition under the "escape hatch" of 28 U.S.C. § 2255(e). Henricks cannot establish that he has not had an "unobstructed procedural shot" at presenting this claim because he could have raised it in a timely section 2255 motion. See Harrison v. Ollison, 519 F.3d 952, 961 (9th Cir. 2008). Accordingly, the district court properly dismissed Henricks's claim for lack of jurisdiction. See id. at 961-62. Contrary to Henricks's contention, McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), does not compel a different result.
We do not consider Henricks's claim that his counsel on state direct appeal was constitutionally ineffective because this claim is raised for the first time on appeal. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).
AFFIRMED.