Sergio Sosa-Sanchez v. Bonita Mosley ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 7 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO SOSA-SANCHEZ, No. 16-56375
Petitioner-Appellant, D.C. No. 2:16-cv-02885-DSF
v.
MEMORANDUM*
BONITA S. MOSLEY,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted February 16, 2018**
Pasadena, California
Before: McKEOWN and WARDLAW, Circuit Judges, and MENDOZA,***
District Judge.
Sergio Sosa-Sanchez appeals from the district court’s denial of his 28 U.S.C.
§ 2241 habeas corpus petition. A federal prisoner challenging the legality of a
*
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).
***
The Honorable Salvador Mendoza, Jr., United States District Judge
for the Eastern District of Washington, sitting by designation.
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sentence must generally do so by motion raised in the sentencing court pursuant to
28 U.S.C. § 2255. Section 2255 contains an exception—known as the “escape
hatch” or “savings clause”—which allows petitioners to file a habeas corpus
petition pursuant to § 2241 to contest a federal sentence where the remedy under
§ 2255 is “inadequate or ineffective to test the legality of his detention.” Id.
§ 2255(e); see also Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000).
Because Sosa-Sanchez cannot invoke § 2255’s escape hatch, he was not entitled to
proceed under § 2241, and we must dismiss his petition.
“A 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). In determining whether a petitioner had an unobstructed procedural shot to
pursue his claim, the court considers: “(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 v. Ollison, 519 F.3d 952, 960 (9th
Cir. 2008) (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060–61 (9th Cir. 2003)).
Sosa-Sanchez’s petition fails because he cannot establish that he lacked an
unobstructed procedural shot to bring the petition within the one-year § 2255
limitations period. Sosa-Sanchez is currently serving time on a 2015 conviction
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for illegal reentry based on the reinstatement of a 1995 deportation order. The
substance of Sosa-Sanchez’s § 2241 petition challenges his 2013 illegal reentry
conviction under 8 U.S.C. § 1326 on the grounds that his initial deportation order
was invalid because it relied on a state law conviction for being a felon in
possession of a firearm under California Penal Code § 12021(c)(1), which is not a
categorical match for a federal removal firearms offense. While Sosa-Sanchez
makes a colorable argument regarding the validity of his conviction, the legal basis
for this argument—the Supreme Court’s decision in Moncrieffe v. Holder, 133 S.
Ct. 1678 (2013)—was available to him during the one-year § 2255 limitations
period.
Because Sosa-Sanchez’s petition did not qualify for § 2255’s escape hatch,
the district court lacked jurisdiction to hear the petition.
The district court’s decision is VACATED and Sosa-Sanchez’s petition is
DISMISSED.
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