United States v. John Meeks ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-36023
Plaintiff - Appellee, D.C. Nos. 2:13-cv-00024-DWM
2:03-cr-00028-DWM-1
v.
JOHN MORGAN MEEKS, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Senior District Judge, Presiding
Argued and Submitted August 31, 2015
Seattle, Washington
Before: GOODWIN, GOULD, and IKUTA, Circuit Judges.
Petitioner John Meeks appeals the dismissal of his motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255. The district court held that
his motion did not qualify as a petition under 28 U.S.C. § 2241, and dismissed it as
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
an unauthorized second or successive § 2255 motion. We have appellate
jurisdiction under 28 U.S.C. § 1291.
The district court had jurisdiction to determine “the threshold question
whether [Meeks’s] petition was properly brought under § 2241 or whether the
filing should instead be construed as a § 2255 motion.” Muth v. Fondren, 676 F.3d
815, 818 (9th Cir. 2012); see also Hernandez v. Campbell, 204 F.3d 861, 865–66
(9th Cir. 2000). We may consider the district court’s determination that a § 2241
petition is not available even though the district court is not the custodial court.
See Muth, 676 F.3d at 819.
The district court did not err when it concluded that Meeks failed to satisfy
the requirement of the § 2255(e) escape hatch because Meeks has not plausibly
shown that he was actually innocent of the career offender sentencing enhancement
under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Even if it is possible
for a petitioner to “be actually innocent of a noncapital sentence for the purpose of
qualifying for the escape hatch,” Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir.
2012), Meeks has not made any showing that he is statutorily ineligible (and
therefore actually innocent) of his sentence in light of Descamps v. United States,
133 S. Ct. 2276 (2013).
PETITION DISMISSED.