Opinion
Case No. CV 17-1190-ODW (SP)
03-31-2017
JUAN AGUILAR-CORTEZ, Petitioner, v. CYNTHIA ENTZEL, Warden, Respondent.
MEMORANDUM AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
I.
INTRODUCTION
On February 14, 2017, petitioner Juan Aguilar-Cortez filed a Petition for a Writ of Habeas Corpus ("Petition") in this Court pursuant to 28 U.S.C. § 2241. At the time of filing, petitioner was housed at the Federal Correctional Institution II in Victorville, California, where he is serving a life sentence imposed by the United States District Court for the Eastern District of California in 1996 following his convictions for conspiracy to distribute methamphetamine (21 U.S.C. §§ 846 and 841(a)(1)), possession with intent to distribute methamphetamine and marijuana (21 U.S.C. § 841(a)(1)), and being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
Petitioner contests the legality of his detention by arguing that, under the United States Supreme Court's decision in Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), he no longer qualifies for the enhancement under 21 U.S.C. § 851 that resulted in his life sentence.
On March 2, 2017, this Court issued an Order directing petitioner to show cause why the Petition should not be recharacterized as a 28 U.S.C. § 2255 motion and dismissed as filed in the wrong jurisdiction, as an improper successive § 2255 motion, and as time-barred ("OSC"). On March 16, 2017, petitioner responded to the OSC ("Response"). In his Response, petitioner argues this Court has jurisdiction to consider the Petition under § 2241 pursuant to § 2255's savings clause. See 28 U.S.C. § 2255(e). The Court disagrees.
For the reasons that follow, this Court lacks jurisdiction to entertain the Petition, and transfer to another court would not be in the interest of justice as the Petition is successive and time-barred. Consequently, the Court summarily dismisses the Petition with prejudice.
II.
PROCEDURAL HISTORY
The Court adopts and sets forth below the procedural history recounted by the United States District Court for the Eastern District of California in case number 2:95-CR-00020, docket no. 291, and as reflected on the docket of that case, with some additions. --------
On June 5, 1996, petitioner was found guilty by a jury of conspiracy to distribute methamphetamine (21 U.S.C. §§ 846 and 841(a)(1)), possession with intent to distribute methamphetamine and marijuana (21 U.S.C. § 841(a)(1)), and being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) in case number 2:95-CR-00020 in the Eastern District of California. On November 4, 1996, petitioner was sentenced to a mandatory term of life imprisonment under 21 U.S.C. § 841(b)(1)(A) based on the amount of methamphetamine involved in his crime of conviction, and based on his three prior felony drug convictions as set forth in the information filed under 21 U.S.C. § 851. Petitioner appealed the judgment, and the Ninth Circuit Court of Appeals affirmed it on September 29, 1997.
Petitioner filed his first motion collaterally attacking his convictions and sentence under 28 U.S.C. § 2255 on December 30, 1998, in the Eastern District of California. That motion was denied on January 25, 2001.
Petitioner then filed a motion for reconsideration on February 14, 2001, which was construed as a second § 2255 motion and transferred to the Ninth Circuit. On July 16, 2001, the Ninth Circuit denied petitioner authorization to file a second or successive § 2255 motion.
On January 6, 2005, petitioner filed an application to reopen his § 2255 motion pursuant to Federal Rule of Civil Procedure 60(b), which the Eastern District of California construed as a third § 2255 motion and again transferred to the Ninth Circuit. On March 30, 2005, the Ninth Circuit again denied petitioner authorization to file a second or successive § 2255 motion.
On December 15, 2006, petition moved to void the judgment, also pursuant to Rule 60(b). The Eastern District of California construed this as a fourth § 2255 motion and, on May 4, 2007, transferred it to the Ninth Circuit.
On November 24, 2014, petitioner moved to reduce his sentence under 18 U.S.C. § 3582(c)(2), which motion the Eastern District of California denied on February 11, 2016. Meanwhile, on July 2, 2015, petitioner filed a fifth § 2255 motion in the Eastern District of California, which that court denied on February 16, 2016.
Nearly one year later, on February 14, 2017, petitioner filed the instant § 2241 Petition in this Court. On March 2, 2017, the Court issued an OSC directing petitioner to show cause why the Petition should not be recharacterized as a § 2255 motion and dismissed as filed in the wrong jurisdiction, as an improper successive § 2255 motion, and as time-barred. On March 16, 2017, petitioner filed his Response to the OSC.
III.
DISCUSSION
With the instant Petition, petitioner seeks to attack his sentence. Section 2255 allows a federal prisoner claiming that his sentence was imposed "in violation of the Constitution or laws of the United States" to "move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). As noted above, petitioner contests the legality of his detention by arguing that, under the United States Supreme Court's decision in Descamps, he no longer qualifies for the enhancement under 21 U.S.C. § 851 that resulted in his life sentence. Pet. at 3-4.
"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." Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam); see Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) ("In general, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention."). A prisoner may not bring a second or successive § 2255 motion in district court without first seeking and obtaining certification from "a panel of the appropriate court of appeals." 28 U.S.C. § 2255(h); Harrison v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008). Only the sentencing court has jurisdiction over a § 2255 motion. Hernandez, 204 F.3d at 864; Tripati v. Henman, 843 F.2d 1160, 1163 (9th Cir. 1988).
The Petition here is plainly a challenge to the legality of petitioner's convictions and sentence. Thus, the relief petitioner seeks here can only be obtained by way of a § 2255 motion filed in the Eastern District of California. As noted above, petitioner has previously filed several § 2255 motions in the Eastern District of California, and petitioner has not received permission to bring a second or successive § 2255 motion. Indeed, he was denied such permission by the Ninth Circuit Court of Appeals on July 16, 2001 and again on March 30, 2005.
There is an exception - a "savings clause" or "escape hatch" - to the general rule that claims such as those petitioner raises here must be brought in a § 2255 motion. See Harrison, 519 F.3d at 956; Hernandez, 204 F.3d at 864 n.2. A federal prisoner may file a habeas petition under § 2241 to challenge the legality of a sentence when the prisoner's remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). Petitioner contends he falls under the savings clause in his Response to the Court's March 2, 2017 OSC. A. The Petition Does Not Qualify for § 2255(e)'s Savings Clause
The exception under § 2255(e) is "narrow" and will not apply "merely because § 2255's gatekeeping provisions," such as the statute of limitations or the limitation on successive petitions, now prevent the courts from considering a § 2255 motion. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003); see also Lorentsen, 223 F.3d at 953 (ban on unauthorized successive petitions does not per se make § 2255 "inadequate or ineffective"); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curiam) (§ 2255 not inadequate or ineffective simply because the district court dismissed the § 2255 motion as successive and court of appeals did not authorize a successive motion). A petition meets the savings clause criteria of § 2255(e) "when a petitioner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Harrison, 519 F.3d at 959 (internal quotation marks and citation omitted). Petitioner here does not satisfy either of these criteria.
Petitioner is not claiming actual innocence of his crimes of conviction. Rather, in his Petition, he is claiming he no longer qualifies for an enhanced sentence under 21 U.S.C. § 851, and in his Response to the Court's OSC petitioner continues to argue he was sentenced erroneously. See Pet. at 3-4; Response at 1. "In this circuit, a claim of actual innocence for purposes of the escape hatch of § 2255 is tested by the standard articulated by the Supreme Court in Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)." Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) (internal quotation marks, brackets, and citation omitted). There, the Supreme Court held "'actual innocence' means factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623. The Ninth Circuit has "not yet resolved the question whether a petitioner may ever be actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch." Marrero, 682 F.3d at 1193. But the Ninth Circuit has held "that the purely legal argument that a petitioner was wrongly classified as a career offender under the Sentencing Guidelines is not cognizable as a claim of actual innocence under the escape hatch." Id. at 1195.
As in Marrero, petitioner is not claiming here that he was actually innocent of his prior felony convictions. Instead, he is claiming he no longer qualifies for an enhanced sentence under 21 U.S.C. § 851, and appears to claim the sentencing court committed error by applying the Sentencing Guidelines in a mandatory fashion in violation of the Supreme Court's subsequent decision in U.S. v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). See Pet. at 3-4; Response at 1. These legal arguments are not claims of actual innocence.
Moreover, petitioner fails to demonstrate he never had an "unobstructed procedural shot" to raise his claims on appeal or in a § 2255 motion. See Harrison, 519 F.3d at 960. In making this determination, the court considers "(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. (internal quotation marks and citation omitted).
Here, the Ninth Circuit affirmed petitioner's convictions on appeal on September 29, 1997, and petitioner filed his first § 2255 motion on December 30, 1998, which was denied on January 25, 2001. See U.S. v. Cortez et al., No. 2:95-CR-00020 (E.D. Cal.), docket nos. 164, 171, 193. In his Petition and in his Response to the Court's OSC, petitioner cites to two cases decided after December 30, 1998. See Pet. at 3-4; Response at 1. In the first, Descamps, the United States Supreme Court held that "sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements." 133 S. Ct. at 2282. Even assuming Descamps assists petitioner, the Supreme Court has not made its holding retroactive and did not announce a new rule of constitutional law. See Jones v. McGrew, 2014 WL 2002245 at *5 (C.D. Cal. May 15, 2014) ("Petitioner cannot maintain that Descamps effected a material change in the applicable law; the Descamps Court clearly communicated its belief that its ruling in the case was 'dictated' by existing precedent.") (quoting Descamps, 133 S. Ct. at 2285). Thus, Descamps does not apply to petitioner's case.
The second case, Booker, "made available a 'Sixth Amendment objection - that the defendant's sentence was enhanced by judge-found facts under a mandatory Guidelines system.'" U.S. v. Cruz, 423 F.3d 1119, 1120 (9th Cir. 2005) (quoting U.S. v. Ameline, 409 F.3d 1073, 1084 (9th Cir. 2005)). The Ninth Circuit has held "Booker is not retroactive, and does not apply to cases on collateral review where the conviction was final as of the date of Booker's publication." Id. at 1121; see also U.S. v. Dupas, 419 F.3d 916 (9th Cir. 2005). As previously noted, petitioner's conviction became final after the expiration of petitioner's period of time to appeal the Ninth Circuit's September 29, 1997 decision affirming his convictions to the United States Supreme Court, thereby making his conviction already final as of the date of Booker's publication in 2005. Thus, the holdings of Booker are inapplicable to petitioner.
In sum, neither of the cited cases present any change in the pertinent law for purposes of the Court's determination of whether petitioner had an "unobstructed procedural shot" to raise his claims on appeal or in a § 2255 motion. See Harrison, 519 F.3d at 960. The holdings of Descamps and Booker do not apply to him, and petitioner's attempt to recharacterize his claim as something other than a constitutional challenge does nothing to change the fact that it is more properly the subject of a motion brought under § 2255. As petitioner has failed to show he lacked an unobstructed procedural shot to raise his claims in the Petition previously on appeal or in a § 2255 motion filed in the sentencing court, petitioner does not qualify for § 2255(e)'s savings clause. B. This Court Lacks Jurisdiction
Because petitioner does not qualify for § 2255(e)'s savings clause, petitioner may not pursue his claims in a § 2241 habeas petition, but may instead pursue his claims only in a § 2255 motion. See 28 U.S.C. § 2255(e). This raises the question of whether this Court should recharacterize the Petition as a § 2255 motion. There are restrictions on the Court doing so. See U.S. v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000). But because, as discussed below, dismissal of the Petition rather than recharacterization is warranted here, the Court finds there is no need for it to go through the steps required by Seesing.
If the Petition were construed as a § 2255 motion, this Court would lack jurisdiction. As previously noted, only the sentencing court has jurisdiction over a § 2255 motion. Hernandez, 204 F.3d at 864-65; Tripati, 843 F.2d at 1163; see 28 U.S.C. § 2255(a); Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012) ("§ 2255 motions must be filed in the district where the petitioner was sentenced"). Since petitioner is seeking to challenge a sentence imposed by the United States District Court for the Eastern District of California, only that court has jurisdiction to entertain a § 2255 motion by petitioner.
The question then is whether the Court should dismiss the Petition for lack of jurisdiction or transfer it to the Eastern District of California. C. The Petition Warrants Dismissal Rather Than Transfer
The transfer of civil actions to cure jurisdictional defects is governed by 28 U.S.C. § 1631. Hernandez, 204 F.3d at 865 n.6. Transfer is appropriate under § 1631 if three conditions are satisfied: (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) (citing Kolek v. Engen, 869 F.2d 1281, 1284 (9th Cir. 1989)). Here, the first condition is met, as this Court lacks jurisdiction, but the second and third conditions are not.
At the time of filing, the sentencing court was effectively barred from exercising jurisdiction over the Petition, which challenges petitioner's conviction and sentence. A prisoner may not bring a second or successive § 2255 motion in district court without first seeking and obtaining permission to do so from "a panel of the appropriate court of appeals." 28 U.S.C. § 2255(h). As discussed, petitioner already brought several § 2255 motions, at least two of which the Eastern District of California denied on the merits. There is no indication petitioner has received permission from the Ninth Circuit to bring a second or successive § 2255 motion. The instant Petition would be expected to be denied as an impermissible successive § 2255 motion if it were transferred to the Eastern District of California.
In addition, transfer would not be in the interest of justice. Before transferring a case to another jurisdiction, district courts may "consider the consequences of transfer." Phillips v. Seiter, 173 F.3d 609, 610-11 (7th Cir. 1999). To determine if transfer is in the interest of justice, the court undertakes a limited review of a petition in light of its likelihood of success. Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990); Boultinghouse v. Lappin, 816 F. Supp. 2d 107, 113 (D.D.C. 2011). Here, transfer would be futile since, in addition to being impermissibly successive, the Petition as a whole is time-barred.
There is a one-year statute of limitations to bring a § 2255 motion. 28 U.S.C. § 2255(f). The one-year limitation period runs from, as pertinent here, "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). A judgment of conviction becomes final when the time expires for filing a petition for writ of certiorari contesting the appellate court ruling. Clay v. U.S., 537 U.S. 522, 524-25, 123 S. Ct. 1072, 155 L. Ed. 2d 88 (2003). Pursuant to 28 U.S.C. § 2101(c), petitioner had ninety days after the entry of judgment to file his petition for writ of certiorari to the Supreme Court. Since the Ninth Circuit denied petitioner's appeal and affirmed his convictions on September 29, 1997, petitioner's filing of this Petition on February 14, 2017 was well after the one-year period to bring a § 2255 motion expired.
As such, transfer to the Eastern District of California would be futile and is not in the interest of justice. Instead, the Petition will be dismissed for lack of jurisdiction. //
IV.
CONCLUSION
IT IS THEREFORE ORDERED that Judgment be entered summarily dismissing the Petition and this action with prejudice. DATED: March 31, 2017
/s/_________
HONORABLE OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
SHERI PYM
United States Magistrate Judge