Opinion
Case No. CV 18-5752-CJC (KK)
02-05-2019
ANTHONY JEROME BANDY, Petitioner, v. DAVID SHINN, Warden, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to United States District Judge Cormac J. Carney pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
SUMMARY OF RECOMMENDATION
Anthony Jerome Bandy ("Petitioner") filed a pro se Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2241 ("Section 2241") challenging his continued confinement at the United States Penitentiary in Adelanto, California. ECF Docket No. ("Dkt.") 1, Pet. Petitioner argues he is actually innocent of the Armed Career Criminal Act ("ACCA") sentencing enhancement under Johnson v. United States, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015) and Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016). Id. at 8. David Shinn ("Respondent") filed a Motion to Dismiss ("Motion") arguing the Petition is an unauthorized second or successive 28 U.S.C. § 2255 ("Section 2255") petition. Dkt. 7, MTD. For the reasons set forth below, the Court recommends GRANTING the Motion.
II.
PROCEDURAL HISTORY
A. Prior Proceedings
On June 18, 1996, Petitioner was convicted of burglary in Georgia Superior Court. Pet. at 37; United States v. Bandy, 426 Fed. Appx. 448, 449 (7th Cir. 2011). On March 3, 2003, Petitioner was convicted of aggravated assault in Georgia Superior Court. Pet. at 39. In 2007, Petitioner was convicted of burglary in Indiana Superior Court. Dkt. 7-1, Ex. A (The Seventh Circuit's April 5, 2016 Order, Dkt. 5 in Case No. 16-1591 in the Seventh Circuit) at 2.
A court "may take judicial notice of matters of public record," including of "proceedings and filings" in other cases and "in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (citations and internal quotation marks omitted); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (citations and internal quotation marks omitted).
On October 16, 2009, Petitioner pled guilty in the Northern District of Indiana to one count of Felon in Possession of a Firearm under 18 U.S.C. § 922(g)(1). See United States v. Bandy, 2:09-CV-00125-RL-APR-1 (N.D. Ind.), dkt. 49. On July 23, 2010, the court sentenced Petitioner to 210 months imprisonment after finding him subject to the ACCA sentencing enhancement. Id. at dkt. 72; Pet. at 2.
Petitioner filed a direct appeal to the Seventh Circuit Court of Appeals and on June 6, 2011, the Seventh Circuit affirmed Petitioner's conviction. Bandy, 426 Fed. Appx. at 450. The Seventh Circuit found Petitioner's 1996 Georgia burglary conviction qualified as a violent felony under ACCA because it met the federal definition of generic burglary under 18 U.S.C. § 924(e)(2)(B)(ii). Id. at 449.
On April 17, 2012, Petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2255 ("Section 2255") in the Northern District of Indiana, which the court denied. Bandy v. United States, 2:12-cv-00149-RL (N.D. Ind.), dkt. 1. Petitioner appealed the denial to the Seventh Circuit, where the circuit court dismissed the appeal. Pet. at 2.
Petitioner then filed an Application for Leave to File a Successive Section 2255 petition with the Seventh Circuit arguing a claim under Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013) (holding a prior conviction qualifies as an ACCA predicate only if the statute's elements forming the basis of the conviction are the same as, or narrower, than those of the generic offense under federal statute). Pet. at 2. On December 19, 2013, the application was denied. Id.
On August 8, 2014, Petitioner filed a Motion for Reconsideration of his original habeas petition arguing his prior convictions should not have triggered an enhanced sentence. United States v. Bandy, 2:09-cr-00125-RL-APR-1 (N.D. Ind.), dkt. 116. The district court construed the motion as a successive petition under Section 2255 and denied relief. Id. at dkt. 118. Petitioner appealed the denial to the Seventh Circuit. Id. at dkt. 120. The Seventh Circuit denied Petitioner a certificiate of appealability and denied his motion to remand the case. Id. at dkt. 141.
On September 14, 2015, Petitioner, proceeding with court-appointed counsel, again filed an Application for Leave to File a Successive Section 2255 motion with the Seventh Circuit. Id. at dkt. 141. Petitioner argued a claim based on Johnson v. United States, 135 S. Ct. 2551, 192 L. Ed. 2d. 569 (2015) (holding as unconstitutionally vague the ACCA's residual clause under 18 U.S.C. § 924(e)(2)(B)(ii), where the statute states "or otherwise involves conduct that presents a serious potential risk of physical injury to another" (emphasis omitted)). Petitioner argued "that under Johnson, h[e] is not an armed career criminal under the ACCA", and that the sentencing court should not have used his previous 2007 Indiana burglary and 2003 Georgia aggravated assault to enhance his sentence under the ACCA. Pet. at 3; Dkt. 7-1, Ex. A at 2. Petitioner did not challenge the sentencing court's reliance on the 1996 Georgia burglary conviction, which was addressed in his 2011 direct appeal. Dkt. 7-1, Ex. A at 2. On April 5, 2016, the Seventh Circuit denied the application. Id. The Seventh Circuit found:
Neither of the challenged convictions was counted as a predicate under the residual clause. In Georgia, aggravated assault has an element the use or threatened use of force and thus qualified under [18 U.S.C.] § 924(e)(2)(B)(i).[ ] And burglary is an enumerated offense the definition of which was established in 1990; if Bandy thought that his Indiana Burglary conviction did not satisfy the generic definition set out in Taylor[v. United States, 495 U.S. 575, 599 (1990)], he should have made that argument in 2011 on appeal. The court's reliance on the Indiana burglary conviction does not implicate Johnson.Dkt. 7-1, Ex. A at 2.
Bandy does not make a prima facie showing that his sentence is incompatible with Johnson.
On March 14, 2017, Petitioner filed a Federal Rule of Civil Procedure 60(b)(6) motion in the Northern District of Indiana. United States v. Bandy, 2:09-cr-00125-RL-APR-1 (N.D. Ind.), dkt. 139. Petitioner argued the sentencing court should not have used his 2007 Indiana burglary conviction to enhance his sentence under the ACCA. Id. On July 18, 2017, the district court dismissed the motion for lack of jurisdiction because the motion was "a successive claim for relief under section 2255, for which [Petitioner] must obtain leave to file from the Seventh Circuit". Id. at dkt. 141 (citing 28 U.S.C. § 2255(h)). /// /// /// ///
B. Petitioner's Instant Action
On June 18, 2018, Petitioner constructively filed the instant Petition pursuant to Section 2241 in this Court. Pet. Petitioner argues he is entitled to relief under Section 2255(e), also known as the "escape hatch," because "he is actual[ly] innocent, and has not had an unobstructed procedural shot at presenting his claim." Id. at 8. Petitioner claims "Descamps, Johnson, and Mathis[ v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)] constitute a material change in the law that demonstrate he is actually innocent of the ACCA sentencing enhancement because under the new caselaw, his prior [state] convictions do not trigger the ACCA." Id. Petitioner asserts "that under the new caselaw, his sentence is illegal, 'as it exceeds the statutory maximum sentence under 18 U.S.C. § 924(a)(2).'" Id. Petitioner seeks to be "resentenced without the ACCA enhancement". Id. at 32.
Under the "mailbox rule," when a pro se prisoner gives prison authorities a pleading to mail to court, the Court deems the pleading constructively filed on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted).
On September 17, 2017, Respondent filed the instant Motion. MTD. Respondent argues (1) the Petition is a disguised second or successive Section 2255 petition that must first be authorized by the Seventh Circuit, and (2) the grounds raised in the Petition does not fall appropriately under Section 2241. Id. at 12-21.
Petitioner has not filed an opposition to the Motion.
The matter thus stands submitted.
III.
DISCUSSION
A. THE COURT LACKS JURISDICTION TO ENTERTAIN THE PETITION
1. Applicable Law
A petitioner challenging "the manner, location, or conditions of a sentence's execution" must file a petition for writ of habeas corpus under Section 2241 in the custodial court. Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). On the other hand, Section 2255 "provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention." Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). As a general rule, a petitioner challenging "the legality of his sentence" must file a motion to vacate his sentence under Section 2255 and "[Section] 2255 motions must be heard in the sentencing court." Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000).
There is, however, an exception to this general rule. Under the "escape hatch" of Section 2255, a federal prisoner may challenge the legality of detention in the custodial court if, and only if, the remedy under Section 2255 in the sentencing court is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e); Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). A prisoner may file under Section 2255's escape hatch in the custodial court "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) (quoting Stephens, 464 F.3d at 898).
With respect to the first prong of Section 2255's escape hatch, an actual innocence claim requires a petitioner to "demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Stephens, 464 F.3d at 898 (citing Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)). To meet the second prong of Section 2255's escape hatch, "it is not enough that the petitioner is presently barred from raising his claim of innocence by motion under [Section] 2255." Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003). Rather, a petitioner "must never have had the opportunity to raise it by motion." Id.
2. Analysis
Here, Petitioner does not challenge "the manner, location, or conditions of a sentence's execution." See Harrison, 519 F.3d at 956. Petitioner instead challenges the legality of his conviction and sentence. See Pet. at 8. Thus, Petitioner cannot proceed in this Court, the custodial court, unless Section 2255's "escape hatch" provision applies. See Lorentsen, 223 F.3d at 953. Applying the two prongs of Section 2255's escape hatch, the Court finds the Petition does not qualify for the exception. See Harrison, 519 F.3d at 959.
a. Actual Innocence
First, Petitioner fails to make a claim of actual innocence. Petitioner's claim that his prior state convictions should not have triggered the ACCA sentencing enhancement is not cognizable as an actual innocence claim under the escape hatch. See Marrero, 682 F.3d at 1195 (holding "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"); Crayton v. Norwood, 622 F. Supp. 2d. 975, 979 (C.D. Cal. 2009) ("As an initial matter, since petitioner's claim of 'actual innocence' challenges his sentence and a prior state court conviction used to enhance his sentence, rather than the offenses of which petitioner was convicted, the claim 'is not, by itself, a claim of actual innocence.'").
b. Unobstructed Procedural Shot
Second, Petitioner fails to establish he lacked an unobstructed procedural shot at presenting his claim. Alaimalo, 645 F.3d at 1047. Although the Seventh Circuit rejected Petitioner's 2015 application for leave to file a successive Section 2255 petition, that ruling did not deny Petitioner the opportunity of raising his claims. See Ivy v. Pontesso, 328 F.3d at 1059 (stating the Section 2255's escape hatch "is narrow," and its "remedy is not inadequate or ineffective merely because [Section] 2255's gatekeeping provisions prevent the petitioner from filing a second or successive petition" (internal quotation marks omitted)); Stephens, 464 F.3d at 898. Indeed, the Seventh Circuit's ruling addressed and rejected the precise claim Petitioner seeks to present in the instant Petition, i.e. that Petitioner's prior convictions should not have triggered the ACCA sentencing enhancement. See Dkt. 7-1, Ex. A at 2 (finding Petitioner's Indiana burglary conviction falls under the enumerated federal offense of generic burglary, and that Petitioner's Georgia aggravated assault conviction did not fall under the residual clause of 18 U.S.C. § 924(e)(2)(B)). As such, Petitioner fails to meet the escape hatch's second prong.
Petitioner, thus, fails to meet either requirement for Section 2255's escape hatch. See Jones v. Langford, No. 17-cv-00438 FMO (RAO), 2017 WL 3575705, at *5-6 (C.D. Cal., July 10, 2017) (holding petitioner failed to meet either prong of the escape hatch where petitioner, after the Tenth Circuit denied his application for a successive petition, argued his ACCA sentencing enhancement for his Felon in Possession conviction was illegal under Johnson and Mathis). Hence, the Court lacks jurisdiction and the Petition must be dismissed. See Hernandez, 204 F.3d at 864-65.
B. PETITIONER'S FAILURE TO OPPOSE SHOULD BE DEEMED AS CONSENT TO GRANT THE MOTION
1. Applicable Law
Central District of California Local Rule 7-12 states "[t]he failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion, with the exception that a motion pursuant to [Federal Rule of Civil Procedure] 56 may not be granted solely based on the failure to file an opposition." C.D. Cal. L.R. 7-12; see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (affirming the grant of an unopposed motion to dismiss, deeming a pro se litigant's failure to oppose as consent to granting the motion).
2. Analysis
Here, Petitioner failed to file an opposition to the Motion. The Court specifically cautioned Petitioner that "failure to timely file an opposition to the [M]otion may result in the granting of the [M]otion in its entirety." See dkt. 10. Thus, pursuant to Local Rule 7-12, the Court deems Petitioner's failure to file an opposition as consent to the granting of the Motion. See C.D. Cal. L.R. 7-12; see also Ghazali, 46 F.3d at 54.
IV.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED the District Court issue an Order: (1) accepting this Final Report and Recommendation; (2) granting Respondent's Motion to Dismiss; and (3) dismissing this action without prejudice. Dated: February 5, 2019
/s/_________
HONORABLE KENLY KIYA KATO
United States Magistrate Judge