Thomas Shrader v. B. Watson ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS CREIGHTON SHRADER, No. 17-16778
Petitioner-Appellant, D.C. No. 1:17-cv-00685-DAD
v.
MEMORANDUM*
B. WATSON,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Federal prisoner Thomas Creighton Shrader appeals pro se from the district
court’s judgment dismissing his 28 U.S.C. § 2241 habeas petition. We dismiss for
lack of jurisdiction.
Shrader’s section 2241 petition alleged that he is actually innocent of being
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
an armed career criminal under 18 U.S.C. § 924(e) because his prior state unlawful
wounding conviction is unconstitutional and he is actually innocent of that
conviction. He contends that, because Supreme Court precedent precludes him
from collaterally attacking his prior state conviction, a 28 U.S.C. § 2255 motion is
inadequate or ineffective and he therefore properly invoked section 2241
jurisdiction under section 2255(e)’s “escape hatch.” The record shows, however,
that Shrader was not denied an “unobstructed procedural shot” to test the legality
of his detention. See Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008)
(discussing considerations for determining whether a petitioner had an
unobstructed procedural shot to pursue his claims); Ivy v. Pontesso, 328 F.3d 1057,
1059-60 (9th Cir. 2003) (procedural bars do not render section 2255’s remedy
inadequate or ineffective). Accordingly, the district court properly concluded that
it lacked section 2241 jurisdiction over Shrader’s petition. See Harrison, 519 F.3d
at 961-62.
Because the district court properly construed Shrader’s filing as a section
2255 motion, he was required to obtain a certificate of appealability (“COA”) to
proceed with this appeal. See Muth v. Fondren, 676 F.3d 815, 822 (9th Cir. 2012).
Shrader has not obtained a COA and we decline to grant one because he has not
made a substantial showing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2); Muth, 676 F.3d at 822-23. We, therefore, dismiss this appeal for lack
2 17-16778
of jurisdiction. See United States v. Mikels, 236 F.3d 550, 552 (9th Cir. 2001).
Appellee’s request for judicial notice is granted.
DISMISSED.
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