Opinion
Case No. CV 09-1292-JFW(RC), (Case No. 3:99-CR-132).
March 6, 2009
OPINION AND ORDER
On February 24, 2009, petitioner Eric Houston, aka Eric Eugene Houston, aka Eric E. Houston, a federal inmate confined in this judicial district, filed a purported petition for writ of habeas corpus under 28 U.S.C. § 2241 challenging his federal conviction and sentence on the following grounds: (1) he "was convicted by a judge who was racially perjudice [sic] against" petitioner; (2) he "was coerced into a plea agreement against his free will"; (3) he "was denied a fair trial by a[n] unbiased judge"; and (4) he "was incompetent to stand trial or enter a plea and . . . any plea was not voluntary." Petition at 3-4.
The Court notes that this is petitioner's fifth purported Section 2241 habeas corpus action, and his third such action in 2009. See Houston v. Herrera, case no. CV 03-5478-JFW(RC) ("Houston I"), which was dismissed without prejudice on February 20, 2004; (2) Houston v. Herrera, case no. CV 03-9426-JFW(CW) ("Houston II"), which was construed to be a Section 2255 motion and was transferred to the Eastern District of Tennessee; (3)Houston v. Norwood, case no. CV 09-0268-JFW(RC) ("Houston III"), which was dismissed without prejudice on January 22, 2009; and (4) Houston v. Norwood, case no. CV 09-0528-JFW(RC) ("Houston IV"), which was dismissed without prejudice on January 30, 2009. The petitioner is advised that the Court is considering declaring him a vexatious litigant due to his continued filing of frivolous actions, and petitioner is advised that if he files another frivolous action, the Court will take such steps.
BACKGROUND
On July 17, 2000, in United States District Court for the Eastern District of Tennessee case no. 3:99-CR-132, petitioner pleaded guilty to, and was convicted of, one count of possession with intent to distribute cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). "In a signed stipulation of facts in support of the guilty plea, [petitioner] agreed that . . . [b]ecause he was responsible for at least five grams of cocaine base, and based upon a prior drug conviction, [petitioner] was subject to a minimum mandatory term of imprisonment of ten years to life, pursuant to 21 U.S.C. § 841(b)(1)(B). He acknowledged as much in his plea agreement. . . ." Houston v. United States, 2006 WL 13213, *1 (E.D. Tenn) (unpublished disposition) (footnote omitted). "The government, however, as contemplated by the plea agreement, filed a motion for downward departure based upon [petitioner's] substantial assistance . . . [and] [petitioner] was sentenced to a term of imprisonment of 200 months. He did not appeal his conviction or sentence." Id.
The Court, pursuant to Fed.R.Evid. 201, takes judicial notice of the docket sheet and records in Eastern District of Tennessee case no. 3:99-CR-132.
The Court, pursuant to Fed.R.Evid. 201, takes judicial notice of the facts determined in Houston I, some of which are set forth herein.
On November 1, 2001, petitioner filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 in the District Court for the Eastern District of Tennessee. Petitioner's claims in Houston II were considered with his Section 2255 motion, and on January 3, 2006, the district court denied the Section 2255 motion in an unpublished opinion. See Houston, 2006 WL 13213, *5. The district court also denied petitioner's request for a certificate of appealability.
DISCUSSION
The Court, having reviewed the pending petition, has determined it is not a habeas corpus petition under 28 U.S.C. § 2241, but rather a motion to vacate, set aside or correct petitioner's sentence under 28 U.S.C. § 2255. See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam) ("[A] court must first determine whether a habeas petition is filed pursuant to § 2241 or § 2255 before proceeding to any other issue."). In making this determination, the Court has considered whether the pending action comes within Section 2255's "savings clause," and, for the reasons discussed below, has determined it does not.
"The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241." Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citations omitted), cert. denied, 549 U.S. 1313 (2007); Harrison v. Ollison, 519 F.3d 952, 955-56 (9th Cir.), cert. denied, 129 S. Ct. 254 (2008). By contrast, a habeas corpus petition under 28 U.S.C. § 2241 is the appropriate mechanism by which a federal prisoner challenges the manner, location or conditions of the execution of his sentence.Hernandez, 204 F.3d at 864. The distinction between a motion to vacate, set aside or correct a sentence under Section 2255 and a habeas corpus petition under Section 2241 affects not only the type of relief generally available, but also whether a particular district court has jurisdiction to hear the request. Id. at 865. Section 2255 motions must be heard in the district court in which the federal prisoner was convicted and sentenced, whereas habeas corpus petitions under Section 2241 may be heard in the district court in which the federal prisoner is confined. Id.
Although petitioner is currently confined in the Central District of California, and this Court has jurisdiction to hear a habeas corpus petition under Section 2241, the claims petitioner raises in this action directly challenge the legality of his conviction and sentence; thus, petitioner's claims are presumptively cognizable only in a Section 2255 motion to vacate sentence, which must be filed in the District Court for the Eastern District of Tennessee. Nevertheless, Section 2255 has an "escape hatch" or "savings clause," which provides that "[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.'" Harrison, 519 F.3d at 956; Stephens, 464 F.3d at 897. The petitioner has the burden of demonstrating Section 2255 is "inadequate or ineffective." Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).
The "inadequate or ineffective" exception is "narrow[,]" Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.), cert. denied, 540 U.S. 1051 (2003); United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997), and "the general rule . . . is that the ban on unauthorized second or successive petitions does not per se make a § 2255 `inadequate or ineffective.'" Stephens, 464 F.3d at 898 (quoting Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) (quoting § 2255)); see also Ivy, 328 F.3d at 1059 ("§ 2255's remedy is not `inadequate or ineffective' merely because § 2255's gatekeeping provisions prevent the petitioner from filing a second or successive petition. . . ." (citation omitted)). Here, petitioner does not explain how the savings clause assists him or even acknowledge that he previously filed a motion to vacate his sentence under Section 2255. Moreover, petitioner does not explain why he did not raise the claims he seeks to raise here in his previous motions to vacate sentence under Section 2255 or why these claims cannot be raised before the Sixth Circuit to obtain its authorization to file a second or successive motion under Section 2255. Thus, petitioner has failed to show that the remedy under Section 2255 is "inadequate or ineffective" and he cannot invoke the savings clause to proceed under Section 2241.
Since this Court has found that the pending action is a motion to vacate sentence under 28 U.S.C. § 2255, and this Court does not have jurisdiction to consider petitioner's Section 2255 motion since the proper venue for such a motion is before the district court in the Eastern District of Tennessee, this action must be dismissed for lack of jurisdiction. See 28 U.S.C. § 2255(a) ("A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." (emphasis added)). Thus, this action should be summarily dismissed for lack of jurisdiction under Local Rule 72-3.2.
Local Rule 72-3.2 provides that "if it plainly appears from the face of the [habeas] petition and any exhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District Judge." Local Rule 72-3.2.
ORDER
IT IS HEREBY ORDERED that the pending action be construed as a motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255 and, as such, Judgment shall be entered summarily dismissing the motion for lack of jurisdiction.The Clerk of Court is ordered to serve this Opinion and Order and Judgment on petitioner.