Opinion
Case No. 3:18-cv-00044-AC
05-03-2018
DOUGLAS E. MELTER, Petitioner, v. WARDEN IVES, FCI Sheridan, Respondent.
ORDER
Petitioner, an inmate at FCI Sheridan, brings this habeas corpus action pursuant to 28 U.S.C. § 2241. For the reason that follow, the court DENIES the Petition for Writ of Habeas Corpus.
BACKGROUND
Petitioner was convicted in the District Court for the Western District of Pennsylvania on a plea of guilty to charges of Attempting to Induce a Minor to Engage in Illegal Sexual Activity, Possession of Material Depicting the Sexual Exploitation of a Minor, and Possession of a Firearm by a Convicted Felon. On August 12, 2013, District Judge Maurice B. Cohill sentenced Petitioner to a term of imprisonment of 360 months. Petitioner appealed, and on February 25, 2015, the Third Circuit Court of Appeals granted the United States' Motion to Enforce Appellate Waiver by Summary Action.
On October 2, 2015, Petitioner filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 in the Western District of Pennsylvania. On December 7, 2016, the district court denied his Petition. On April 28, 2017, the Third Circuit Court of Appeals denied a certificate of appealability.
On January 8, 2018, Petitioner filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 in this court. Petitioner asks this court to vacate his conviction for Possession of a Firearm by a Felon on the basis that he is actually innocent of the charge and the prosecution failed to disclose exculpatory evidence that would show his innocence. The factual basis of Petitioner's claims is a discrepancy in the type of ammunition needed for the weapon in question and the type of ammunition purchased or possessed by Petitioner.
LEGAL STANDARDS
Habeas petitions brought under § 2241 are subject to summary dismissal pursuant to Rules 1(b) and 4 of the Rules Governing Section 2254 Cases. Under Rule 1(b), the Rules Governing § 2254 Cases apply to habeas corpus petitions brought pursuant to § 2241. Under Rule 4, the court must undertake a preliminary review of each petition for writ of habeas corpus. Upon such review, "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner."
A federal court may not consider a habeas action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). "[T]o determine whether jurisdiction is proper, a court must first determine whether a habeas petition is filed pursuant to § 2241 or § 2255 before proceeding to any other issue." Hernandez, 204 F.3d at 865.
A federal prisoner may challenge the manner, location, or conditions of a sentence's execution by filing a petition pursuant to § 2241 in the "custodial court," that is, the court of the district in which he is incarcerated. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Hernandez, 204 F.3d at 864-65. If the prisoner challenges the legality of his conviction or sentence as Petitioner does here, however, a motion under 28 U.S.C. § 2255, filed in the court of conviction, is the exclusive means by which he may test the legality of his detention. Stephens, 464 F.3d at 897; Tripati v. Henman, 843 F.2d 1160, 1161-62 (9th Cir. 1988). Generally, a prisoner may not collaterally attack a federal conviction or sentence by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the custodial court, as Petitioner seeks to do in this case. Tripati, 843 F.2d at 1162.
An exception to the general rule, commonly referred to as the "escape hatch" or the "savings clause," "permits a federal prisoner to file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is inadequate or ineffective to test the legality of his detention." Stephens, 464 F.3d at 897 (citations and internal quotations omitted); see also 28 U.S.C. § 2255. The exception is very narrow. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). "[A] prisoner may file a § 2241 petition under the escape hatch when the prisoner (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) (internal quotations omitted), cert. denied, 568 U.S. 1173 (2013).
"The general rule in this circuit is that the ban on unauthorized second or successive petitions does not per se make § 2255 'inadequate or ineffective.'" Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) (quoting 28 U.S.C. § 2255). The remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied or because a remedy under § 2255 is procedurally barred. See Aronson v. May, 85 S. Ct. 3, 5 (1964) (denial of a prior § 2255 motion is insufficient to render § 2255 inadequate). The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).
DISCUSSION
I. Construction of the Petition as a § 2255 Motion
Petitioner contends he is actually innocent of the conviction for Possession of a Firearm by a Felon. Such a claim does not challenge the manner, location or conditions of a sentence's execution that implicates § 2241. Rather, it directly challenges the legality of the sentence and, as such, falls within the exclusive domain of § 2255. See Lorentsen, 223 F.3d at 953. Although Petitioner names the Warden of FCI Sheridan as the Respondent, he does not challenge any of Respondent's actions in carrying out the sentence. Instead, he attacks the legality of the conviction and sentence itself. As such, the Petition is properly construed as a § 2255 motion over which this Court lacks jurisdiction, unless Petitioner can establish that the Petition falls within the "savings clause" of § 2255.
II. The Savings Clause
A. Actual Innocence
Petitioner alleges a freestanding claim of actual innocence, arguing that evidence of the type of ammunition he possessed was incompatible with the firearm in question. Petitioner also offers sworn witness statements from two individuals about the circumstances regarding the status of the firearm.
In the Ninth Circuit, a claim of actual innocence for purposes of the § 2255 savings clause is tested using the standard articulated by the United States Supreme Court in Bousley v. United States, 523 U.S. 614 (1998). Stephens, 464 U.S. at 898. "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)) (internal quotation marks omitted). Such showing requires that the petitioner make a showing of factual innocence, "not mere legal insufficiency." Bousley, 523 U.S. at 623. In other words, the exception concerns "actual as opposed to legal innocence." Sawyer v. Whitley, 505 U.S. 333, 339 (1992). The actual innocence requirement is not satisfied when a petitioner merely asserts that he was factually innocent of his crimes of conviction but does not introduce "evidence tending to show that he did not commit the [acts] underlying his convictions." Marrero, 682 F.3d at 1192. The petitioner bears the burden of proof. Lorentsen, 223 F.3d at 954.
"A prototypical example of 'actual innocence' in a colloquial sense is the case where the State has convicted the wrong person of the crime." Sawyer, 505 U.S. at 340. Although such claims are regularly made after conviction in both state and federal courts, they are "quite regularly denied because the evidence adduced in support of them fails to meet the rigorous standards for granting such motions." Id. Only in rare instances, such as when another person has confessed to the crime, is it "evident that the law has made a mistake." Id.
Petitioner does not establish that he is innocent of the crimes for which he was convicted. Petitioner has not demonstrated that it is more likely than not that no reasonable juror could find that he possessed the firearm in question, which was found in his home. The evidence offered by Petitioner in support of his claim is, at best, circumstantial.
B. Unobstructed Procedural Shot
Even assuming Petitioner could establish his factual innocence based on the evidence alleged in his Petition, he cannot demonstrate that he has not had an unobstructed procedural shot at presenting this claim.
When a § 2241 petitioner previously raised the same claim in a § 2255 motion, he has "had an unobstructed procedural shot to pursue his claim." Harrison v. Ollison, 519 F.3d 952, 961 (9th Cir. 2008). "[I]t is not enough that 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." Ivy, 328 F.3d at 1060. "In determining whether a petitioner had an unobstructed shot to pursue his claim, the court must ask whether petitioner's claim 'did not become available' until after a federal court decision." Harrison, 519 F.3d at 960. "In other words, we consider: (1) whether the legal basis for petitioner's claim 'did 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 that first § 2255 motion." Id.
Here, the record reflects that Petitioner raised a challenge in his initial § 2255 motion brought in the Western District of Pennsylvania based upon his trial attorney's failure to investigate that the bullets found in the Petitioner's residence were incompatible with the revolver found in Petitioner's residence. Thus, petitioner had an unobstructed procedural shot at raising his arguments in the district of conviction. Because petitioner has had a full and fair opportunity to raise his claim, he should not be permitted to raise it again through a § 2241 petition in a different court. See Ivy v. Pontesso, 328 F.3d 1057 (9th Cir. 2003) (petitioner "must never have had the opportunity to raise [his claim of actual innocence] by motion").
Petitioner cannot bring the instant Petition under § 2241 because he had the opportunity to raise his claim when he brought his § 2255 motion in the Western District of Pennsylvania. The fact that Petitioner may now be barred (by either the one-year limitation period or the rules against successive petitions) from asserting his claims in a § 2255 motion does not establish that the § 2255 remedy is inadequate or ineffective to test the legality of his detention.
III. Transfer
Transfer of venue is governed by 28 U.S.C. § 1631, which provides: "Whenever a civil action is filed . . . and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought." A matter should be transferred "if three conditions are met: (1) the transferring court lacks jurisdiction; (2) the transferee court could have exercised jurisdiction at the time the action was filed; and (3) the transfer is in the interest of justice." Cruz-Aguilera v. INS, 245 F.3d 1070, 1074 (9th Cir. 2001 (citation omitted).
Here, the court lacks jurisdiction over the Petition. However, construed as a § 2255 motion, the Western District of Pennsylvania would also lack jurisdiction because the Third Circuit Court of Appeals has not granted authority for a successive § 2255 motion. Accordingly, the court concludes that transfer is not in the interest of justice because it would be futile. In these circumstances, transfer to the Western District of Pennsylvania is not warranted.
CONCLUSION
For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action.
The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 3 day of May, 2018.
/s/_________
Marco A. Hernandez
United States District Judge