Opinion
CV-22-00241-TUC-JGZ (LCK)
08-17-2023
Roger Bates, Petitioner, v. D. Colbert, Respondent.
REPORT AND RECOMMENDATION
HONORABLE LYNNETTE C. KIMMINS UNITED STATES MAGISTRATE JUDGE
Petitioner Roger Bates, incarcerated at the United States Penitentiary in Tucson, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. LRCiv 72.2(a)(2). Before this Court are the Amended Petition with exhibits (Doc. 4), Respondent's Answer (Doc. 12), and Petitioner's Reply (Doc. 17). The Magistrate Judge recommends the District Court, after its independent review of the record, deny the Petition.
FACTUAL AND PROCEDURAL BACKGROUND
On December 18, 2012, in the Western District of Arkansas, Petitioner was sentenced to 720 months in prison on two counts of use of a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction, pursuant to 18 U.S.C. § 2251(a), (e). (Doc. 12, Ex. A, Attach. 1 at 2; Doc. 4 at 3.) Based on a motion pursuant to 28 U.S.C. § 2255, that court resentenced Petitioner to allow him to appeal his sentence. (Doc. 4-1 at 3.) Petitioner filed an appeal, which was denied. (Id. at 4.) Petitioner then filed a substantive § 2255 motion, which was denied in the district court and on appeal. (Id. at 5.)
DISCUSSION
Petitioner alleges that (1) he is actually innocent of his convictions for sexual exploitation of a minor; and (2) it is cruel and unusual punishment to hold him in prison during the COVID-19 pandemic. In his Reply, Petitioner states that he is knowingly, voluntarily, and intelligently "waiving" Claim 2. (Doc. 17 at 2.) Therefore, the Court proceeds only as to Claim 1. Respondent argues the Petition should be dismissed because Petitioner failed to exhaust his administrative remedies and the Court does not have jurisdiction over Claim 1.
In Claim 2, Petitioner alleged that the prison had been unable to house him safely since COVID-19 began circulating, which violated his Eighth Amendment right not to be subject to cruel and unusual punishment. Petitioner challenged the condition of his confinement but asserted that it amounted to a challenge on the duration and fact of his confinement because he sought release. Addressing similar allegations brought under the Eighth Amendment, the Ninth Circuit recently concluded that they "lie outside the historic core of habeas corpus" and, therefore, the district court did not have jurisdiction over the claim in a § 2241 proceeding. Pinson v. Carvajal, 69 F.4th 1059, 1062, 1065-66, 1075 (9th Cir. 2023) (examining a claim that "prison officials violated prisoners' constitutional rights by failing to provide adequate conditions of confinement to protect against the spread of COVID-19"and release was the only remedy). Thus, Petitioner's Claim 2 is without merit and would be dismissed if not withdrawn.
EXHAUSTION
Respondent asserts Petitioner did not even attempt to exhaust his administrative remedies at any level of review. Petitioner does not contest the absence of exhaustion. (Doc. 4 at 4; Doc. 17 at 3.) He contends, however, that there are no administrative remedies for Claim 1.
Typically, the Court requires an inmate to exhaust all available administrative remedies before it agrees to reach the merits of a 28 U.S.C. § 2241 claim. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). The administrative exhaustion requirement protects an administrative agency's authority by promoting respect for the agency's procedures and by affording it the opportunity to correct its own mistakes before being hailed into court. Woodford v. Ngo, 548 U.S. 81, 89 (2006). The requirement also promotes efficiency by utilizing a process that is quicker and more economical than resolution in federal court. Id. Finally, should the matter ultimately reach the court, the exhaustion requirement facilitates the "preparation of a useful record." Jones v. Bock, 549 U.S. 199, 219 (2007). However, exhaustion of administrative remedies is not a jurisdictional requirement of a § 2241 claim. Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). The Court may waive the requirement if exhausting administrative remedies would be futile, inadequate, void, or would cause irreparable injury. Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004).
Petitioner is alleging actual innocence invalidating his conviction. Because the error Petitioner asserts was not committed by the Bureau of Prisons, nor is it correctable by that agency, pursuing administrative remedies would be futile. See McBride v. Shinn, No. 1:19-CV-00482-DAD-EPG-HC, 2019 WL 3285705, at *2 (July 22, 2019) (finding exhaustion futile because petitioner asserted error by the sentencing court in a § 2241 petition brought under § 2255's savings clause), report and recommendation adopted, 2019 WL 5714507 (E.D. Cal. Nov. 5, 2019); Meeks v. McClintock, No. CV-12-00335-TUC-RCC, 2015 WL 4524002, at *5 (D. Ariz. July 24, 2015) (finding exhaustion would be futile because BOP could not remedy the § 2255 savings clause claim); cf. United States v. Pirro, 104 F.3d 297, 298-99 (9th Cir. 1997) (explaining that the exhaustion required for a § 2241 petition, brought pursuant to the savings clause of § 2255(e), requires a petitioner to first exhaust his remedy available under § 2255). On the basis of futility, the Court finds that Claim 1 should not be dismissed based on exhaustion.
MERITS
Petitioner argues that he is actually innocent of violating 18 U.S.C. § 2251, based on the decision in United States v. Hillie, 14 F.4th 677 (D.C. Cir. 2021), and on reh'g, 39 F.4th 674 (D.C. Cir. 2022). Hillie adopted a different statutory interpretation of lascivious exhibition of the genitals or pubic area of a person (one type of sexual conduct under § 2251) than the interpretation that underlies Petitioner's convictions. Id. at 687, 689, 691. Petitioner contends that when the statutory interpretation adopted in Hillie is applied to the facts of his case, he is actually innocent.
Because Petitioner is contesting the legality of his conviction, his claim falls within the parameters of 28 U.S.C. § 2255 rather than § 2241 under which he brought his Petition. Petitioner contends he qualifies for the savings clause of § 2255, which provides that a writ of habeas corpus under § 2241 may be brought if the remedy available by a § 2255 motion is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). A prisoner "may not file a second or successive § 2255 motion based solely on a more favorable interpretation of statutory law adopted after his conviction became final and his initial § 2255 motion was resolved." Jones v. Hendrix, 143 S.Ct. 1857, 1863 (2023). Instead, a successive § 2255(h) motion must be based on "newly discovered evidence" or "a new rule of constitutional law." Id.
At the time Petitioner filed this habeas petition, the Ninth Circuit allowed a § 2241 petition (pursuant to the § 2255 savings clause) based on a retroactive change in statutory interpretation, such as Petitioner alleges here. See Allen v. Ives, 976 F.3d 863, 867-68 (9th Cir. 2020) (Fletcher & Christen, JJ., concurring in denial of rehearing en banc) (highlighting a circuit split on this issue). In May 2022, the Supreme Court granted a writ of certiorari in Jones v. Hendrix, 142 S.Ct. 2706 (2022), to address the circuit split on that question:
whether federal inmates who did not--because established circuit precedent stood firmly against them--challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under § 2241 after this Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.Jones v. Hendrix, Pet. Writ Cert., Sup. Ct. No. 21-857, 2021 WL 5864561, at *1 (Dec. 7, 2021). Petitioner has acknowledged that the decision in Jones could invalidate his first claim. (Docs. 13, 14.)
In Jones, the Court examined whether the § 2255(h) limitation for successive motions - allowing only claims based on new evidence or new constitutional law - may render § 2255 inadequate or ineffective under the statute's savings clause as to other types of claims. 143 S.Ct. at 1863. The Court found that the § 2255 preclusion from raising a statutory interpretation claim in a successive petition, also bars those claims from being raised under the savings clause in a § 2241 petition. Id. (holding that Congress's decision to limit successive petitions to the two delineated circumstances means there is no vehicle for a federal prisoner to raise a statutory claim after an initial § 2255 motion). Petitioner's Claim 1 is based upon a change in statutory interpretation. Therefore, Jones bars Petitioner from raising Claim 1 under the savings clause of § 2255. Claim 1 should be dismissed for lack of jurisdiction.
Petitioner's claim based on Hillie also fails to establish actual innocence. “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.” Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). Petitioner was convicted in the Eighth Circuit, and acknowledges that he could not win his actual innocence claim in the Eighth Circuit (Doc. 17 at 7). This Court looks to the law in the circuit of conviction when reviewing the merits of a § 2241 petition. See Kipp v. Rardin, No. CV-20-00167-TUC-RM-JR, 2022 WL 14963883, at *7 (Sept. 28, 2022), report and recommendation adopted, 2022 WL 14813732 (D. Ariz. Oct. 26, 2022) (collecting cases). Now, and at the time of Petitioner's conviction, the Eighth Circuit relied upon what are known as the Dost factors to determine if images met the requirement of “lascivious exhibition of the genitals orpubic area” in 18 U.S.C. § 2251. See United States v. Petroske, 928 F.3d 767, 773 (8th Cir. 2019) (citing United States v. Dost, 636 F.Supp. 828, 832 (S.D. Cal. 1986)). The court in Hillie rejected use of the Dost factors for that analysis. Regardless, because the Eighth Circuit has continued to use the same statutory interpretation applied to Petitioner, he does not have a claim of actual innocence under the law of the circuit in which he was convicted.
CONCLUSION AND RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order DENYING the Petition. Claim 1 should be dismissed because it does not meet the savings clause of § 2255(e); therefore, the Court does not have jurisdiction over the claim. Claim 2 should be dismissed because Petitioner withdrew his request for relief.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV 22-241-TUC-JGZ.