Opinion
CV 24-3467-CAS (AS)
07-24-2024
Tavo Simmons v. United States of America, et al.,
Present: The Honorable Alka Sagar, United States Magistrate Judge
CIVIL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) ORDER REQUIRING PETITIONER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED
On April 13, 2018, in the United States District Court for the Eastern District of Kentucky Case No. CR 17-0030-DLB (“Simmons I”), Tavo Simmons (“Petitioner”) pled guilty to, and was convicted of, one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine in violation of 21 U.S.C. § 846. (Simmons I, Docket (“Dkt.”) No. 52). On June 28, 2018, Petitioner was sentenced to 120 months in federal prison to be followed by eight years of supervised release. (Simmons I, Dkt. No. 76). Petitioner appealed the judgment to the Sixth Circuit Court of Appeals, which affirmed the judgment on November 6, 2019. United States v. Simmons, 794 Fed.Appx. 461 (6th Cir. 2019).
On April 26, 2024, Petitioner, who is proceeding pro se and is currently on supervised release, filed in this Court a 146-page habeas corpus petition pursuant to 28 U.S.C. § 2241 (“Petition”), challenging the judgment in Simmons I and requesting the immediate termination of supervised release. (Dkt. No. 1).
While Petitioner cites other federal statutes and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the gravamen of the pending action is Petitioner's attack on his conviction in Simmons I.
“Generally, a federal prisoner may only challenge the legality of his confinement through a 28 U.S.C. § 2255 motion.” Pavulak v. Blanckensee, 14 F.4th 895, 896 (9th Cir. 2021) (per curiam), cert. denied, 142 S.Ct. 1188 (2022); Shepherd v. Unknown Party, Warden, FCI Tucson, 5 F.4th 1075, 1076 (9th Cir. 2021) (per curiam); see also Jones v. Hendrix, 599 U.S. 465, 469 (2023) (“Since 1948, Congress has provided that a federal prisoner who collaterally attacks his sentence ordinarily must proceed by a motion in the sentencing court under § 2255, rather than by a petition for a writ of habeas corpus under § 2241.”); Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012) (“A motion under § 2255 is generally the exclusive remedy for a federal prisoner who seeks to challenge the legality of confinement.”). The lone exception to this general rule is § 2255(e), often referred to as the “escape hatch” or “saving clause,” under which “a federal prisoner may file a § 2241 petition, but only if the § 2255 remedy is ‘inadequate or ineffective to test the legality of his detention.'” Pavulak, 14 F.4th at 896-97 (quoting 28 U.S.C. § 2255(e)); Shepherd, 5 F.4th at 1076; see also Muth, 676 F.3d at 818 (“‘The one exception to the general rule is what we have called the ‘escape hatch' of § 2255.'” (quoting Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006)). Petitioner has the burden of demonstrating Section 2255 is “inadequate or ineffective.” Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).
Whether a petition is properly brought under § 2255 or § 2241 has important implications, including that “§ 2241 petitions must be filed in the district where the petitioner is confined, while § 2255 motions must be filed in the district where the petitioner was sentenced.” Muth, 676 F.3d at 818; Stephens, 464 F.3d at 897; see also Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam) (“Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court.”). Petitioner currently reside in the Central District of California, and this Court has jurisdiction to hear a habeas corpus petition under § 2241. (See Petition at 1). However, as discussed above, Petitioner was sentenced in the United States District Court for the Eastern District of Kentucky, which is the Court with jurisdiction over any § 2255 motion Petitioner might file. Accordingly, before addressing any other issue, the Court “must resolve the threshold question whether [the Petition] was properly brought under § 2241 or whether the filing should instead be construed as a § 2255 motion.” Muth, 676 F.3d at 818; see also Hernandez, 204 F.3d at 865 (“[I]n order to 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.”).
Here, while not a model of clarity, the Petition appears to be a disguised § 2255 motion. Accordingly, Petitioner is ORDERED TO SHOW CAUSE within twenty-one (21) days of the date of this Order (by no later than August 14, 2024), why the Petition should not be dismissed without prejudice for lack of jurisdiction.
Alternately, if Petitioner wishes to file a Section 2255 motion in the sentencing court or otherwise no longer wishes to pursue this action, he may request a voluntary dismissal of this action pursuant to Fed.R.Civ.P. 41(a). A Notice of Dismissal form is attached for Petitioner's convenience. Petitioner may then file a Section 2255 motion directly with the sentencing court.
Petitioner is cautioned that the failure to timely file a response to this Order to Show Cause and/or to show good cause may result in a recommendation that this action be dismissed for lack of jurisdiction, for failure to comply with the Court's order, and/or for failure to prosecute.