Opinion
No. C 01-1081 MMC (PR)
December 20, 2001
JUDGMENT
For the reasons stated in the Order signed and filed this date, judgment is hereby entered construing this action as a motion under 28 U.S.C. § 2255, and DISMISSING the motion without prejudice to re-filing, should the proper certification be obtained by petitioner from the Ninth Circuit. A copy of this judgment shall be filed in CR-90-0302 FMS.
IT IS SO ORDERED.
ORDER DISMISSING PETITION (Docket No. 1)
I. Background
In 1991, petitioner Kenneth Marshall was convicted in this Court on federal criminal charges (C-90-0302 FMS). The Ninth Circuit affirmed his conviction in October, 1993. More than five years later, Marshall filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255. On June 17, 1998, United States District Judge Fern M. Smith issued an order denying the petition as untimely under the provisions of 28 U.S.C. § 2244 and 2255. On September 22, 1998, Judge Smith entered an order denying a certificate of appealability with respect to the Court's denial of the § 2255 motion. On February 2, 2001, Marshall, who is currently serving his sentence at the United States Penitentiary in Florence, Colorado, filed a pro se motion in this Court requesting a new trial or resentencing. The Court construed the motion as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and ordered the government to respond. The government has filed an opposition to the petition, and Marshall has filed a traverse.
On June 11, 2001, the case was reassigned to the undersigned.
II Discussion
In his current petition, Marshall raises three claims, each alleging the ineffective assistance of counsel. He alleges counsel was ineffective for: (1) failing to raise an insanity defense; (2) failing to seek a downward departure based on Marshall's drug addiction; and (3) failing to notify Marshall of any offer by the prosecutor for a plea of guilty to a lesser included charge.
A. Rule 60(b) Motion
Marshall alleges that he is seeking relief under Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b) provides for relief from a final judgment upon a showing of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) any other reason justifying relief. See Fed.R.Civ.P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Subparagraph (6) requires a showing that the grounds justifying relief are extraordinary; mere dissatisfaction with the court's order or belief that the court is wrong in its decision are not adequate grounds for relief $cc Twentieth Century — Fox Film Corp., 637 F.2d at 1341.
To the extent Marshall seeks relief from his final judgment of conviction, a motion under 28 U.S.C. § 2255, as discussed below, is the only remedy available to him. To the extent Marshall seeks to challenge this Court's prior dismissal of his first § 2255 motion as untimely, he has not alleged any grounds justifying such relief. Accordingly, the Rule 60(b) motion is DENIED.
B. Writ of Error Coram Nobis
Marshall initially characterized his petition as one for a writ of error coram nobis. The government responds that Marshall does not qualify for coram nobis relief
The writ of error coram nobis affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody. See Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994); United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989). The writ fills a very precise gap in federal criminal procedure. To qualify for coram nobis relief, four requirements must be satisfied: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case and controversy requirement of Article III; and (4) the error is of the most fundamental character. See Estate of McKinney v. United States, 71 F.3d 779, 781-782 (9th Cir. 1995) (citation omitted).
Because Marshall is currently in custody serving the sentence on his underlying offense, coram nobis relief is not available to him. Even if Marshall is released on supervised release, he will still remain"in custody" for purposes of federal review. See Jones v. Cunningham, 371 U.S. 236, 241-43 (1963) (holding parole meets custody requirement); Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) (same). Therefore, the application for a writ of error coram nobis is DENIED.
Upon initial review, the Court designated the present action as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. The government argues that § 2241 does not apply because Marshall is not challenging the manner, location, or conditions of the execution of his sentence, and that his claims are properly brought under 28 U.S.C. § 2255. In his traverse, Marshall argues that § 2241 does apply because he is not only challenging the constitutionality of his underlying conviction, but is also asking the Court to place him in "an outpatient clinic via writ or send [him] a bus ticket with instructions to proceed to a clinic in [D]enver, [C]olorado, or the state of [C]alifornia." Traverse at 11.
To the extent Marshall seeks to challenge the manner or location of the execution of his sentence, he must exhaust his administrative remedies through the Federal Bureau of Prisons before filing a § 2241 petition in federal court. See United States v. Checchini, 967 F.2d 348, 350 (9th Cir. 1992). Marshall has not done so. Accordingly, his request for a transfer to an outpatient clinic is DENIED.
To the extent Marshall seeks to challenge his underlying conviction, § 2241 is not a proper remedy because Marshall has not shown that a § 2255 motion is inadequate or ineffective to test the legality of his detention. Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999). A prisoner in custody under sentence of a federal court who wishes to collaterally attack the validity of his conviction or sentence, must do so by way of a motion to vacate, set aside or correct the sentence pursuant to § 2255, in the court which imposed the sentence. See Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied, 488 U.S. 982 (1988). An exception to the general bar against using § 2241 to collaterally attack a conviction or sentence is that a federal prisoner may seek such relief if he can show that the remedy available under § 2255 is "`inadequate or ineffective to test the validity of his detention.'" United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting 28 U.S.C. § 2255). This is a very narrow exception, see id and the remedy under § 2255 generally will not be deemed inadequate or ineffective due to the mere fact that a previous § 2255 motion was denied. See Aronson v. May, 85 S.Ct. 3, 5 (1964); Tripati, 843 F.2d at 1162-63; see also Lane v. Hanberry, 601 F.2d 805 (5th Cir. 1979) (holding that, irrespective of whether petitioner seeks to raise new issue or relitigate issue already decided by prior § 2255 motion, relief under § 2241 not proper unless petitioner can show § 2255 proceeding inadequate or ineffective). Even the dismissal of a subsequent § 2255 motion as successive under 28 U.S.C. § 2244 (b) does not render federal habeas relief under § 2255 an ineffective or inadequate remedy. See Moore, 185 F.3d at 1055.
Marshall has not shown that the § 2255 remedy is inadequate or ineffective to test the legality of his conviction. Accordingly, his request for relief under 28 U.S.C. § 2241 is DENIED.
For the reasons discussed above, the Court construes the present petition as a motion to vacate sentence, which must be brought under 28 U.S.C. § 2255. This is the second § 2255 motion Marshall has brought to challenge his conviction. The first motion was denied by Judge Smith on June 17, 1998. Before Marshall can file a second or successive § 2255 motion, it must be certified by a panel of the appropriate court of appeals to contain "(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." See 28 U.S.C. § 2255. A district court has no jurisdiction to reach the merits of any successive claim unless petitioner receives certification from the court of appeals. See United States v. Allen, 157 F.3d 661, 644 (9th Cir. 1998).
Marshall did not seek or obtain the proper certification from the Ninth Circuit Court of Appeals prior to filing the present motion. Accordingly, this motion must be DISMISSED without prejudice to refiling, if Marshall obtains the necessary order.
III Conclusion
For the foregoing reasons, this petition is construed as a motion under 28 U.S.C. § 2255, and is DISMISSED without prejudice. The Clerk of the Court shall file a copy of this Order in the criminal action (CR-90-0302 FMS).
The Clerk shall close the file.
IT IS SO ORDERED.