Opinion
CV-22-00357-TUC-SHR (AMM)
06-13-2023
William James Gallenardo, Petitioner, v. Unknown Gutierrez, Respondent.
REPORT AND RECOMMENDATION
HONORABLE ANGELA M. MARTINEZ UNITED STATES MAGISTRATE JUDGE
Pending before the Court is a Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2241. Petitioner, William James Gallenardo, who is currently confined at the United States Penitentiary in Tucson, Arizona, alleges that his sentence was improperly enhanced under 18 U.S.C. § 3559(e). Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Martinez for Report and Recommendation. LRCiv 72.2(a)(2). Before the Court are the Petition, Respondent's Answer, and Petitioner's Reply. (Docs. 1, 13, 21.) As set forth herein, the Magistrate Judge recommends that the District Court, after its independent review of the record, dismiss the petition for lack of jurisdiction.
BACKGROUND
Petitioner was convicted in the District of Montana on June 14, 2007 of one count of sexual exploitation of children in violation of 18 U.S.C. § 2251(a), and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). (Docs. 13 at 5, 13-1.) Petitioner is incarcerated at the United States Penitentiary (USP)-Tucson, where he is serving a life sentence on Count One and a concurrent sentence of 240 months on Count Two. (Doc. 13 at 1.)
Petitioner's sentence was imposed on October 17, 2007 in the District of Montana. (Id.; see also doc. 13-1 at 10.) Due to Petitioner's prior Montana convictions for sexual assault in 1987, the district court sentenced him to a mandatory life sentence pursuant to 18 U.S.C. § 3559(e). See United States v. Gallenardo, 579 F.3d 1076, 1081, 1083-85 (9th Cir. 2009). Petitioner appealed his conviction and sentence to the Ninth Circuit Court of Appeals, which affirmed. Id. Petitioner did not file a petition for writ of certiorari to the United States Supreme Court, and his conviction and sentence became final on November 27, 2009. (Docs. 1 at 3, 13 at 2). Petitioner did not file a motion collaterally challenging his sentence or his conviction pursuant to 28 U.S.C. § 2255. (Docs. 1 at 5, 13 at 2.)
Respondents provide information and documentation regarding Petitioner's 1987 sexual assault convictions. (Docs. 13 at 2-3, 13-4, 13-5, 13-6, 13-7, 13-8, 18 (under seal).) The sentence and judgment issued on September 15, 1987, finds that Petitioner pled guilty to sexual assault in violation of M.C.A. § 45-5-502 in Case Nos. DC 87-90 and DC 87-94. (Doc. 13-8.) For these offenses, Petitioner was sentenced to two consecutive terms of twenty years imprisonment in Montana state prison. (Doc. 13-8 at 5.) The twenty-year sentence in Case No. DC 87-94 was to be suspended under certain conditions. (Id.) Petitioner acknowledges the conviction in Case. No. DC 87-94 but fails to acknowledge the conviction in Case No. DC 87-90. (See docs. 1 at 4, 13 at 3, 1-3 at 3.) Petitioner's failure to acknowledge the second state conviction does not materially impact the issues raised in the petition; nevertheless, the Court notes for the record that Petitioner has two prior state sex offense convictions.
Section 3559(e) states that a "person who is convicted of a Federal sex offense in which a minor is the victim shall be sentenced to life imprisonment if the person has a prior sex conviction in which a minor was the victim." A prior sex conviction "means a conviction for which the sentence was imposed before the conduct occurred constituting the subsequent Federal sex offense, and which was for a Federal sex offense or a State sex offense." § 3559(e)(C). The statute defines "Federal sex offense" as an offense under several enumerated sections of the United States Code. § 3559(e)(2)(A). The statute also explains that "State sex offense" is "an offense under State law that is punishable by more than one year in prison and consists of conduct that would be a Federal sex offense" if there had been federaljurisdiction. § 3559(e)(2)(B).
ANALYSIS
Petitioner argues the sentencing judge failed to apply the "categorical approach," as set forth in Mathis v. United States, 579 U.S. 500 (2016), when evaluating whether his convictions for sexual assault against children qualified as a predicate offense under § 3559(e). Petitioner contends his sexual assault convictions do not categorically meet the definition of a “prior sex conviction in which a minor was the victim” under § 3559(e); therefore, they did not qualify as a “Federal sex offense” for purposes of the sentencing enhancement.
Because Petitioner is contesting the legality of his sentence, his claim falls within the parameters of § 2255 rather than § 2241, under which he brought the petition. A motion to vacate sentence pursuant to § 2255 is generally the appropriate method for challenging a federally imposed conviction or sentence, including a challenge that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law.” § 2255(a); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). A § 2241 petition for writ of habeas corpus is not a substitute for a motion under § 2255. McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).
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." § 2255(e); see also Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). This escape hatch is satisfied if 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 (quoting Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006)). For expediency, the Court focuses on the second requirement, whether Petitioner had an “unobstructed procedural shot" at presenting the claims in his Amended Petition.
Section 2255 provides, in relevant part, “An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him . . . unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” § 2255(e).
The Court must "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." Harrison, 519 F.3d at 960 (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060-61 (9th Cir. 2003)). To establish the unavailability of relief on a claim, an “intervening court decision” must have effected “a material change in the applicable law.” Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011). That the deadline has passed for filing a § 2255 petition does not support a finding that the motion is inadequate or ineffective. Holland v. Pontesso, 234 F.3d 1277 (9th Cir. 2000) (citing Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999)). The Ninth Circuit holds the relevant question to be whether a petitioner ever “had the opportunity to raise it by motion.” Ivy, 328 F.3d at 1060. Such an opportunity “does not mean he took the shot, or even that he or his attorney recognized the shot was there for the taking. All the Constitution requires, if it requires that much, is that the procedural opportunity have existed.” Abdullah v. Hedrick, 392 F.3d 957, 963 (8th Cir. 2004) (quoting Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999), overturned on other grounds by Gilbert v. United States, 640 F.3d 1293, 1319 (11th Cir. 2011)).
Petitioner fails to meet the narrow exception provided by the savings clause of § 2255; therefore, the Court lacks jurisdiction over his petition. Ivy, 328 F.3d at 1059, 1061. Petitioner asserts that he did not raise his categorical match argument on direct appeal or in a § 2255 petition because it would have been futile based on then-existing Ninth Circuit law in United States v. Farmer, 627 F.3d 416 (9th Cir. 2010). Farmer was decided in 2010; therefore, it is unclear on what basis Petitioner could argue that it foreclosed any sentencing-related claim in 2007-2008.
The Court does not reach the issue of actual innocence because Petitioner does not satisfy the other requirement for the § 2255 savings clause.
Petitioner further argues that his claims did not arise until the Supreme Court decided Mathis in 2016. But Mathis did not create a material change in the applicable law, making Petitioner's argument available for the first time. Mathis involved a sentencing enhancement under the Armed Criminal Career Act (ACCA), not § 3559(e). Moreover, the statute under which Petitioner was convicted of his predicate state offenses, M.C.A. § 455-502, does not list multiple, alternative factual means of satisfying one or more of the elements of the crime, as did the underlying statute in Mathis. (See doc. 13-2.) Thus, the circumstances present in Mathis that required the Court to determine whether the predicate offense was a categorical match are not present here.
Had Petitioner wanted to present a claim that M.C.A. § 45-5-502 is not a categorical match to § 3559(e), he could have made that argument on appeal or on collateral review pursuant to Taylor v. United States, 495 U.S. 575 (1990) following his sentencing. Indeed, Petitioner concedes that his attorney did in fact argue that his prior sexual assault convictions were not a categorical match under Taylor and that the sentencing enhancement should not apply. (Doc. 1 at 4.) The sentencing memorandum filed on his behalf argued, in relevant part:
There is nothing in the provisions of Montana's Sexual Assault statute that would premise a conviction on ‘conduct that would be a Federal sex offense' as required by the provisions of 18 U.S.C. § 3559(e)(2)(B) . . . A sentencing court can look only to the fact of conviction and the statutory definition of a prior conviction when determining whether it can be the basis of a sentencing enhancement. The analysis is not controlled by the conduct giving rise to the conviction. Simply put, the offenses that Gallenardo was convicted of in 1987 are not qualifying predicates for the imposition of a life sentence pursuant to the provisions of 18 U.S.C. § 3559(e).(Doc. 1-2 at 13) (internal citation omitted); see also Taylor, 495 U.S. at 600-02 (a sentencing court must use a formal categorical approach in applying a sentencing enhancement provision, looking only to the fact of conviction and the statutory definition of the predicate offense and not to the underlying facts). Despite raising this argument at sentencing, Petitioner did not raise it on appeal or by collateral attack under § 2255.That this argument was not raised by counsel on appeal, or by Petitioner in a § 2255 motion, does not mean it was unavailable. See United States v. Doss, 630 F.3d 1181, 1197 (9th Cir. 2011) (“whether defendant has a prior ‘sex offense' conviction-involves the traditional Taylor approach and a comparison of generic elements”).
On appeal, Petitioner argued that the district court erred by: (1) imposing a life sentence pursuant to § 3559(e), on grounds different from those raised in the instant § 2255 petition; (2) denying his motion to dismiss the indictment; and (3) denying his motion for a mistrial. United States v. Gallenardo, 579 F.3d 1076, 1078 (9th Cir. 2009). The Ninth Circuit affirmed Petitioner's conviction and sentence. Id.
Petitioner further argues by analogy Courtright v. Von Blanckensee, 2022 WL 522106 (9th Cir. Feb. 22, 2022), wherein the Ninth Circuit overruled the district court's dismissal of a § 2241 petition, finding that the petitioner had met the requirements for invoking the savings clause of § 2255. 2022 WL 522106 at *1-2. The petitioner in that case argued that he was innocent of a mandatory life sentence under § 3559(e) because his prior state conviction was not a categorical match for the federal crimes enumerated in § 3559(e). Id. at *1. The Ninth Circuit found that petitioner did not have an unobstructed procedural shot at presenting his claim on direct appeal or in an initial § 2255 motion because, at the time, Seventh Circuit law foreclosed his theory that the state statute was broader than the § 3559(e) enumerated federal offenses. Id.
Relying on Courtright, Petitioner claims he similarly qualifies for the “savings clause” because his categorical match argument was foreclosed by then-existing Ninth Circuit precedent in Farmer, 627 F.3d 416. However, as previously noted, Farmer did not issue until after Petitioner's appeal and § 2255 remedies were available. Petitioner has not identified any other precedent, nor has the Court located a Ninth Circuit case foreclosing Petitioner's categorical match argument at the time his direct appeal or § 2255 remedy became available.
In sum, Petitioner had an unobstructed procedural shot at presenting his claim of innocence of the mandatory sentencing enhancement under § 3559(e), but simply failed to do so. Thus, he cannot invoke the savings clause of § 2255, and the petition should be dismissed for lack ofjurisdiction.
CERTIFICATE OF APPEALABILITY
A certificate of appealability is not needed for a § 2241 petition but is required for a § 2255 motion. 28 U.S.C. § 2253(c). Because the Court finds the petition is most reasonably classified as a § 2255 motion pursuant to the escape hatch provision, see Harrison, 519 F.3d at 956, the Court assesses whether to issue a certificate of appealability. See Rule 11(a) of the Rules Governing Section 2255 Cases. The Court finds a certificate of appealability is not warranted because reasonable jurists could not debate the resolution of this case. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
RECOMMENDATION
For the reasons stated above, the Magistrate Judge recommends that the District Court enter an Order dismissing Petitioner's Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus. (Doc. 1.) The Magistrate Judge further recommends that, should the District Court assess whether to issue a certificate of appealability, it decline to do so.
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: 4:22-cv-00357-TUC-SHR.