Opinion
CV-19-00590-TUC-RM (EJM)
05-06-2021
Ricky Randall Wrex Smith, Petitioner, v. C. Howard, [1] Respondent.
REPORT AND RECOMMENDATION
Eric J. Markovich United States Magistrate Judge
Pending before the Court is a pro se Petition for a Writ of Habeas Corpus (Doc. 8) filed pursuant to 28 U.S.C. § 2241 by Ricky Randall Wrex Smith (“Petitioner”), who is confined in the United States Penitentiary in Tucson, Arizona. Petitioner alleges that, pursuant to the Ninth Circuit's decision in United States v. Schopp, 938 F.3d 1053 (9th Cir. 2019), his prior state convictions were improperly used to enhance his sentence under 18 U.S.C. § 2251(e). Petitioner requests that the Court vacate his life sentence and remand for resentencing.
Respondent argues that the § 2241 petition should be dismissed for lack of jurisdiction because it is a disguised § 2255 motion and Petitioner's allegations do not implicate the “escape hatch” or “savings clause” of § 2255(e). (Doc. 21 at 3). Alternatively, Respondent argues that even if the Court does find jurisdiction, the petition should be denied because Petitioner failed to meet his burden to show that his prior state offenses were broader than the generic definition of the crime defined in the federal statute. Id. at 6.
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for a Report and Recommendation. For the reasons discussed below, the undersigned finds that the Court lacks jurisdiction over the § 2241 petition. Petitioner did not lack an unobstructed procedural shot to present his claim for relief prior to the Ninth Circuit's ruling in Schopp because Schopp did not materially change 18 U.S.C. § 3559(e), the statute that Petitioner was sentenced under. Accordingly, it is recommended that the District Court dismiss the petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner pleaded guilty to a three-count indictment charging him with: (1) production of child pornography, 18 U.S.C. § 2251(a); (2) transportation of child pornography, 18 U.S.C. § 2252A(a)(1); and (3) possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B). (Doc. 21 Ex. A). On motion by the government, Counts 2 and 3 were dismissed. Id. Ex. B. The Presentence Investigation Report stated that the minimum term of imprisonment on Count 1 was not less than life imprisonment, pursuant to 18 U.S.C. § 2251(e) and 18 U.S.C. § 3559(e). (Doc. 25 ¶ 134). On March 26, 2010 the U.S. District Court for the Middle District of Alabama sentenced Petitioner to a term of life imprisonment on Count 1. (Doc. 21 Ex. B).
Petitioner did not file a direct appeal.
On November 13, 2012, Petitioner filed a motion under 28 U.S.C. § 2255 alleging: (1) ineffective assistance of counsel; (2) the district court's calculation of his base offense level using the 2009 Sentencing Guidelines resulted in an Ex Post Facto Clause violation; and (3) the government engaged in prosecutorial misconduct in obtaining his indictment. Smith v. United States, 2015 WL 438970, at *1 (M.D. Ala. Feb. 3, 2015). The court denied the § 2255 petition as time-barred because it was filed after the one-year limitation period in § 2255(f) expired. Id. The court also found that as to the ex post facto clause claim, “the sentence actually imposed against Smith was not controlled by his sentencing range calculated under the guidelines, but rather by the statutory provisions of 18 U.S.C. § 3559(e), which mandated that he be sentenced to life in prison as a repeat sex offender against children.” Id. at *3. “Thus, any supposed ex post facto error in the calculation of Smith's guidelines sentencing range-and Smith demonstrates no such error-would be harmless.” Id.
Petitioner filed the instant § 2241 petition on April 7, 2020 raising two grounds for relief. (Doc. 8). Petitioner alleges that he was illegally sentenced to life imprisonment because his prior state convictions are not a categorical match to the federal offense of production of child pornography and therefore cannot serve as predicate offenses for the multiple conviction enhancement in § 2251(e). (Doc. 8 at 4). Petitioner further alleges that his petition qualifies for review under § 2241 pursuant to the savings clause because the Ninth Circuit's decision in Schopp materially changed the law after his first § 2255 petition. Id. at 5.
The original petition was filed on December 20, 2019 and dismissed by the Court for failing to use the Court-approved form, with leave to file an amended petition. (Docs. 1, 7).
II. DISCUSSION
A. Jurisdiction
“[I]n order to determine whether jurisdiction is proper, a court must first determine whether a habeas petition is filed pursuant to [28 U.S.C.] § 2241 or 2255 before proceeding to any other issue.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). A federal prisoner challenging the legality of a sentence must generally do so via a motion raised in the sentencing court pursuant to 28 U.S.C. § 2255. Id. at 864. By contrast, a prisoner who wishes to challenge the manner, location, or conditions of the execution of a sentence must bring a petition pursuant to 28 U.S.C. § 2241 in the custodial court. Id. A prisoner may not bring a second or successive petition under § 2255 without first 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). The restrictions on the availability of a § 2255 motion cannot be avoided through a petition under § 2241. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006).
The one exception to the general rule against subsequent § 2255 petitions is what has been called the “escape hatch” or “savings clause” of § 2255. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). “The escape hatch permits a federal prisoner to file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is inadequate or ineffective to test the legality of his detention.” Stephens, 464 F.3d at 897 (internal quotations and citation omitted). The Ninth Circuit has made clear that the ban on successive § 2255 petitions does not per se make § 2255 an inadequate or ineffective remedy for purposes of the escape hatch. Lorentsen, 223 F.3d at 953; see also United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (the escape hatch is a narrow doctrine to be used in limited circumstances).
A petitioner can only file a successive § 2255 petition if the appropriate circuit court certifies that the successive petition is based on: (1) newly discovered evidence which would establish by clear and convincing evidence that no reasonable fact finder would have found the petitioner guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255(h).
A § 2241 petition meets the escape hatch criteria where a petitioner: (1) makes a claim of actual innocence; and (2) has not had an unobstructed procedural shot at presenting that claim. Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011). If a petition meets the escape hatch requirements, the petitioner may avoid the procedural prohibitions on the filing of second or successive petitions under § 2255. See Ivy v. Pontesso, 329 F.3d 1057, 1059-60 (9th Cir. 2003). Therefore, the Court must first make a threshold determination of whether Petitioner's claim satisfies the requirements of the escape hatch before reaching the claim's merits. For the following reasons, the Court finds that Petitioner has not satisfied his burden to demonstrate that the savings clause applies. Accordingly, the undersigned recommends that the District Court dismiss the petition for lack of jurisdiction.
i. Actual Innocence for Purposes of the Escape Hatch
To establish actual innocence under the escape hatch, “a petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Alaimalo, 645 F.3d at 1047 (internal quotations and citation omitted). This requires a showing that there has been a material change in the law that places the petitioner's conduct outside the scope of the criminal statute that he was convicted under. Harrison, 519 F.3d at 960-61. The court's decision in Alaimalo is instructive. There, the petitioner was convicted of importing methamphetamine from California to Guam. Alaimalo, 645 F.3d at 1045. At the time of his conviction, the transportation qualified as importation because the drugs traveled over international waters, even though the drugs were traveling from one part of the United States to another. Id. at 1048. Six years later, the Ninth Circuit overruled its prior decisions and held that transporting drugs from one location in the United States to another does not constitute importation, even if the drugs travel over international waters. Id. at 1046 (citing United States v. Cabaccang, 332 F.3d 622, 623 (9th Cir. 2003) (en banc)). Alaimalo then filed a § 2241 petition alleging actual innocence based on the Ninth Circuit's new interpretation of importation. Id. The court found that Alaimalo had made a showing of actual innocence because, after Cabaccang, the act he was convicted of was not a crime. Id. at 1047. The court further found that the actual innocence claim was unavailable during Alaimalo's direct appeal and first § 2255 motion because Cabaccang “effected a material change in the law applicable to Alaimalo's case, such that the legal basis for his actual innocence claim did not become available until Cabaccang was decided.” Id.at 1047-48. The court therefore concluded that because Alaimalo did not have an unobstructed procedural shot to present his claim in his first § 2255 petition, the claim could be raised in the § 2241 petition. Id. at 1049.
In Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020), the Ninth Circuit joined several other circuits in holding that a claim of actual innocence may be predicated on a petitioner having been statutorily ineligible for a sentencing enhancement. In Allen, the petitioner was sentenced as a career offender pursuant to the mandatory Sentencing Guidelines in effect at the time of his conviction. 950 F.3d at 1186. Following the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016), the petitioner filed a § 2241 motion alleging that he was actually innocent of being a career offender. Allen, 950 F.3d at 1187. The district court dismissed the petition for lack of jurisdiction without addressing the petitioner's claim that his state court conviction was not a predicate offense for career offender enhancement. Id. The Ninth Circuit reversed on appeal, answering the question previously left open by the court in Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012), and holding that a petitioner may make a claim of actual innocence of a noncapital sentence for the purpose of qualifying for the escape hatch. Allen, 950 F.3d at 1189. The court reasoned that if Allen's prior conviction “was not a predicate conviction for career offender status under the Guidelines, the factual predicate for his mandatory sentencing enhancement did not exist. That is, he is actually innocent of the enhancement.” Id. The court distinguished Allen's claim from the petitioner in Marrero because in that case, the claim of actual innocence was based on a non-retroactive interpretation of the Guidelines and Marrero “made no claim to factual innocence of the crimes of which he had been convicted.” Id. at 1190. In contrast, Allen's claim of actual innocence was based on a retroactive change of law that transformed his state conviction from a predicate crime into a non-predicate crime. Id. If Allen was therefore actually innocent of the predicate crime, then he was actually innocent of the mandatory sentencing enhancement. Id. The court thus found that jurisdiction under § 2241 was proper based on the petitioner's claim of actual innocence. Id. at 1189.
See Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013) and Hill v. Masters, 836 F.3d 591 (6th Cir. 2016) (finding that a petitioner may utilize the escape hatch to challenge the misapplication of the career offender sentencing guideline where the petitioner was sentenced in the preBooker era when those guidelines were mandatory); see also United States v. Maybeck, 23 F.3d 888, 890-91 (4th Cir. 1994) (recognizing an actual innocence claim where the petitioner contended that a prior conviction did not qualify as a predicate offense).
Holding that a prior conviction does not qualify as the generic form of a predicate violent felony offense listed in the Armed Career Criminal Act if an element of the crime of conviction is broader than an element of the generic offense because the crime of conviction enumerates various alternative factual means of satisfying a single element.
Here, Petitioner argues that the Ninth Circuit's decision in Schopp materially changed the law regarding the statute under which he was sentenced. In that case, the Ninth Circuit found that the defendant's prior state offenses were not a categorical match to the federal definition of “sexual exploitation of children” and therefore could not serve as predicate offenses for the multiple conviction enhancement in 18 U.S.C. § 2251(e). Schopp, 938 F.3d at 1063, 1069. Section 2251(e) provides that a defendant with “2 or more prior convictions . . . under the laws of any State relating to the sexual exploitation of children . . . shall be . . . imprisoned not less than 35 years nor more than life.” Petitioner relies on Schopp to argue that his sentence was improperly enhanced pursuant to § 2251(e) because his prior state convictions for sexual abuse and sexual assault of minors do not require a visual depiction element and are therefore not a categorical match to the federal generic definition of sexual exploitation of children. Petitioner thus contends that he was illegally sentenced to a life term in excess of the maximum statutory penalty. However, despite Petitioner's arguments to the contrary, Petitioner was not sentenced under the provisions of § 2251(e).
On appeal, the Ninth Circuit reversed, finding that the defendant's prior state offenses did not relate to the sexual exploitation of children and thus could not serve as predicate offenses under § 2251(e). Id. at 1069. The court applied the categorical approach set out in Taylor v. United States, 495 U.S. 475 (1990), first defining the federal generic offense, then determining whether the elements of the state crime sufficiently match the elements of the generic federal offense. Schopp, 938 F.3d at 1058-59. The court held that “the federal generic definition of ‘sexual exploitation of children' is defined within § 2251 as the production of visual depictions of children engaging in sexually explicit conduct, or put simply, the production of child pornography.” Id. at 1061. The court then found that the Alaska state offenses for sexual assault and sexual abuse of minors were not a categorical match because each contained different elements than the federal generic definition. Specifically, the elements of the state crimes did not contain the production of child pornography. Id. at 1062-63. Because the defendant's prior state convictions were not a categorical match, they could not serve as predicate offenses for the multiple conviction enhancement under § 2251(e), and the case was remanded for resentencing. Id. at 1063, 1069. In Schopp the defendant pled guilty to the production of child pornography and the district court sentenced him under 18 U.S.C. § 2251(e). 938 F.3d at 1056. The statute's penalty provision states that a defendant with “2 or more prior convictions . . . under the laws of any State relating to the sexual exploitation of children . . . shall be . . . imprisoned not less than 35 years nor more than life.” 18 U.S.C. § 2251(e). The district court found that the defendant's prior state convictions relating to the sexual assault and sexual abuse of minors “relat[ed] to the sexual exploitation of children” and applied § 2251(e)'s enhancement to sentence the defendant to life imprisonment. Schopp, 938 F.3d at 1056.
While Petitioner was charged with production of child pornography in violation of 18 U.S.C. § 2251(a), Petitioner was sentenced under 18 U.S.C. § 3559(e). (Doc. 28-1 [Sentencing Transcript] at 14:9-12); Smith, 2015 WL 438970 at *3 (“[T]he sentence actually imposed against Smith was not controlled by his sentencing range calculated under the guidelines, but rather by the statutory provisions of 18 U.S.C. § 3559(e), which mandated that he be sentenced to life in prison as a repeat sex offender against children.”). 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.” At sentencing, the State noted that § 3559(e)(2)(A) lists an offense under § 2251(a), the offense Petitioner was convicted of, as included in the definition of “federal sex offense.” (Doc. 28-1 [Sentencing Transcript] at 13:4-9). The State further noted Petitioner's two prior state felony convictions qualified as prior sex convictions for purposes of § 3559(e). Id. at 13:12-23. Petitioner was convicted under Missouri state law of two counts of felony sodomy for deviate sexual intercourse with a person less than fourteen years old and was sentenced to 15 years in prison for these offenses. (Doc. 25 ¶ 101). Thus, based on Petitioner's conviction in the instant case for a federal sex offense involving a minor victim and prior state sex convictions involving a minor victim, the court found that Petitioner was subject to mandatory life imprisonment for repeated sex offenses against children pursuant to 18 U.S.C. § 3559(e)(1). (Doc. 28-1 [Sentencing Transcript] at 14:9-12).
“Prior sex conviction” is defined as 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.” 18 U.S.C. § 3559(e)(2)(C). “State sex offense” means “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[.]” Id. § 3559(e)(2)(B).
The court specifically found that Petitioner's offense of conviction was a qualifying federal sex offense in which the minor was a victim and that Petitioner had a prior sex conviction in which a minor was the victim. (Doc. 28-1 [Sentencing Transcript] at 14:16- 20).
In sum, it is clear from the record that Petitioner was sentenced to mandatory life imprisonment pursuant to § 3559(e). Section 3559(e) contains different elements than § 2251(e) and does not reference “sexual exploitation of children.” Because Schopp only considered the sentencing enhancement in § 2251(e), Schopp did not materially change the law relating to Petitioner's sentence. Accordingly, the undersigned finds that Petitioner is not “actually innocent” for purposes of the escape hatch. . . .
ii. Unobstructed Procedural Shot to Present Claims
However, even assuming arguendo that Petitioner has made a substantial claim of actual innocence, he cannot establish that he has not previously had an unobstructed procedural shot to present his claims because Schopp in no way announced a new rule applicable to Petitioner's claims. His petition must therefore be dismissed.
“In determining whether a petitioner had an unobstructed procedural shot to pursue his claim, we ask whether [the] petitioner's claim ‘did not become available' until after a federal court decision.” Harrison, 519 F.3d at 960 (quoting Stephens, 464 F.3d at 898). “[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.” Teague v. Lane, 489 U.S. 288, 301 (1989). In deciding whether a petitioner had an unobstructed procedural shot to pursue his claim, the court considers: (1) whether the legal basis for the petitioner's claim arose after he had exhausted his direct appeal and first § 2255 motion; and (2) whether the law has changed in any way relevant to the petitioner's claim after that first § 2255 motion. Harrison, 519 F.3d at 960.
Here, Petitioner claims to satisfy this requirement by arguing that because Schopp was decided in 2019, he had no prior opportunity to raise his sentencing claims. However, as explained above, Schopp did not materially change the law relating to Petitioner's claims. See Alaimalo, 645 F.3d at 1047 (“An intervening court decision must ‘effect a material change in the applicable law' to establish unavailability.” (quoting Harrison, 519 F.3d at 960)). Petitioner's claims were not foreclosed by controlling law prior to the Ninth Circuit's decision in Schopp because the standards regarding § 3559(e) were the same before and after Schopp was decided. Thus, Petitioner had an unobstructed procedural shot to raise his claim challenging his mandatory life sentence under § 3559(e) at least at the time of his first § 2255 petition, if not sooner.
Accordingly, the undersigned concludes that Petitioner did have an unobstructed procedural shot to present his actual innocence claim in a timely § 2255 motion and, for that reason, he may not now raise that claim in a § 2241 petition. Therefore, Petitioner has not successfully established that he has satisfied the requirements of the escape hatch.
B. Dismissal
For the reasons stated above, Petitioner may only bring his claim in a § 2255 motion because the escape hatch is unavailable to him. Because § 2255 motions must be filed in the district where the Petitioner was sentenced, this Court is without jurisdiction to hear a recharacterized § 2255 motion. See 28 U.S.C. § 2255(a); Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012). Petitioner is serving a sentence imposed by the United States District Court for the Middle District of Alabama and therefore must file a § 2255 petition with that court. Thus, this Court must decide whether to dismiss the petition or transfer it to the Middle District of Alabama. See 28 U.S.C. § 1631. Transfer is appropriate if three conditions are met: “(1) the transferring court lacks jurisdiction; (2) the transferee could have exercised jurisdiction at the time the action was filed; and (3) the transfer is in the interest of justice.” Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001) (citing Kolek v. Engen, 869 F.2d 1281, 1284 (9th Cir. 1989)). Here, as discussed above, the first factor is met, but the other two are not.
Because this is a subsequent § 2255 petition, the District Court for the Middle District of Alabama could not have exercised jurisdiction over the petition at the time the action was filed. Instead, Petitioner would first need to seek Eleventh Circuit authorization to file the subsequent § 2255 petition. See 28 U.S.C. § 2255(h); Harrison, 519 F.3d at 955. Thus, the second condition for transfer is not met. The third condition is also not met. Because the transferee court would not be able to exercise jurisdiction over the instant petition, transfer of the case would not further the interests of justice. Therefore, dismissal of the § 2241 petition is warranted.
Some circuit courts have ruled that if a petitioner erroneously files a motion for leave to file a second or successive § 2255 petition in the district court or if a petitioner actually files a second or successive § 2255 petition in the district court without first having obtained circuit court authorization, then the district court has the option of transferring the motion or petition to the proper court of appeals. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008); Jones v. Braxton, 392 F.3d 683, 691 (4th Cir. 2004); Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002); Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (per curiam); United States v. Barrett, 178 F.3d 34, 41 n.1 (1st Cir. 1999). Two circuit courts mandate such a transfer. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997); Liriano v. United States, 95 F.3d 119, 122 (2d Cir. 1996). While not explicitly expressing an opinion on the issue, the Ninth Circuit has seemingly determined that transfer of a petition is not mandatory. See Hernandez, 204 F.3d at 866 (directing the custodial court to dismiss the § 2255 petition as a secondary or successive filing if that court decided that the savings clause did not apply). The Tenth Circuit has articulated certain factors that district courts should consider in deciding whether to transfer a motion or petition to the circuit court including “whether the claims alleged are likely to have merit.” In re Cline, 531 F.3d at 1252. Here, this Court is not required to transfer this successive § 2255 petition to the Eleventh Circuit. Furthermore, for the reasons stated above, it is unlikely that Petitioner's claims have merit given the lack of any new law in Schopp regarding § 3359(e), and the Eleventh Circuit has already rejected Petitioner's requests to file a second or successive petition. Therefore, this Court will also not transfer this petition to the Eleventh Circuit for consideration.
III. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DISMISSING the Petition (Doc. 8) under 28 U.S.C. § 2241 for lack of jurisdiction.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CV-19-590-TUC-RM.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall send a copy of this Report and Recommendation to all parties.