Pedro Hernandez v. United States ( 2013 )

FILED
NOT FOR PUBLICATION JAN 04 2013
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PEDRO HERNANDEZ, No. 11-35350
Petitioner - Appellant, D.C. No. 1:11-cv-00013-JDS
v.
UNITED STATES OF AMERICA, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, District Judge, Presiding
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Pedro Hernandez appeals from the district court’s judgment denying his
28 U.S.C. § 2241 petition challenging his conviction and sentence for drug crimes
and money laundering. Because the district court lacked jurisdiction over the
petition, we vacate and remand.
Hernandez argues that he satisfies the requirements of the “escape hatch” of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 2255(e). This argument fails because Hernandez does not argue that
he is actually innocent of the charges of conviction, and the challenges that he
advances in his petition could have been raised on direct appeal or in his section
2255 motion. See Stephens v. Herrera, 464 F.3d 895, 898-99 (9th Cir. 2006)
(instructional error consisting in failure to require unanimity is not a claim of
“actual innocence” for escape hatch purposes); Harrison v. Ollison, 519 F.3d 952,
961 (9th Cir. 2008) (petitioner who could have raised claim on direct appeal or in
his first § 2255 motion cannot show that he did not have “unobstructed procedural
shot” at raising claim to qualify for escape hatch). Accordingly, Hernandez’s
petition is not properly brought under section 2241 but is, rather, a disguised
successive section 2255 motion over which the district court lacked jurisdiction.
See Harrison, 519 F.3d at 961-62.
Although Hernandez failed to seek prior authorization to file a successive
section 2255 motion as required by section 2255(h), we construe the instant appeal
as a motion for such authorization. See United States v. Washington, 653 F.3d
1057, 1065 (9th Cir. 2011), cert. denied, 132 S. Ct. 1609 (2012). So construed, the
motion is denied, as Hernandez fails to identify “newly discovered evidence that, if
proven and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable factfinder would
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have found [him] guilty of the offense.” 28 U.S.C. § 2255(h)(1). Because the
district court denied Hernandez’s petition rather than dismissing it, and because
Hernandez does not satisfy the requirements of section 2255(h), we remand with
instructions to dismiss for lack of jurisdiction.
VACATED and REMANDED with instructions to dismiss.
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