Arrington Oliver v. L.J. Mulisnic ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARRINGTON OLIVER, ) Case No. CV 19-7421-AB (JPR) 12 ) Petitioner, ) 13 ) ORDER DENYING PETITION AND v. ) DISMISSING ACTION 14 ) L.J. MULISNIC, Warden. ) 15 ) Respondent. ) 16 ) 17 Petitioner is a federal inmate currently housed at the U.S. 18 Penitentiary in Victorville. On August 27, 2019, he filed an 19 unsigned and unverified Petition for Writ of Habeas Corpus under 20 28 U.S.C. § 2241. 21 BACKGROUND 22 In 2007, Petitioner was convicted by guilty plea in the 23 Southern District of Florida of possessing a firearm as a felon, 24 in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). See Judgment 25 at 1, United States v. Oliver, No. 1:07-cr-20617-PCH (S.D. Fla. 26 27 28 1 1 Dec. 3, 2007), ECF No. 41.1 He was sentenced to 212 months in 2 prison. Id. at 2. Because he had three prior convictions “for a 3 violent felony or a serious drug offense, or both,” he was 4 subject to an enhanced sentence under the Armed Career Criminal 5 Act. See Oliver v. United States, Nos. 16-cv-22665-PCH & 07-cr- 6 20617-PCH, 2017 WL 384245, at *1 (S.D. Fla. Jan. 3, 2017), 7 vacated and remanded by 714 F. App’x 971 (11th Cir. 2018); (Pet. 8 at 12-13); see also § 924(e). The 11th Circuit Court of Appeals 9 affirmed the judgment on direct appeal. United States v. Oliver, 10 316 F. App’x 877, 878 (11th Cir. 2008). 11 Since then, Petitioner has filed numerous motions to vacate 12 his sentence under 28 U.S.C. § 2255. In his first such motion, 13 filed in December 2010, he argued that battery on a police 14 officer did “not categorically qualify” as a violent felony under 15 § 924(e) and that his prior convictions for that crime were not 16 predicate offenses under the ACCA. See Mot. at 4-5, Oliver, No. 17 1:07-cr-20617-PCH, ECF No. 71. The motion was denied in July 18 2011. Order, id., ECF No. 72. He filed additional § 2255 19 motions in 2013 and 2014, see Mots., id., ECF Nos. 73, 75; both 20 were denied for lack of jurisdiction, Orders, id., ECF Nos. 74, 21 76. 22 In 2015, the Supreme Court held that a portion of 23 § 924(e)(2)(B)’s definition of “violent felony” was 24 unconstitutionally vague. Johnson v. United States, 135 S. Ct. 25 2551, 2557 (2015). It subsequently held that Johnson applied 26 retroactively to cases on collateral review. Welch v. United 27 1 The Court uses the pagination generated by the Case 28 Management/Electronic Case Filing system. 2 1 States, 136 S. Ct. 1257, 1268 (2016). Shortly thereafter, the 2 11th Circuit granted Petitioner leave to file a successive § 2255 3 motion. See Order, In re Oliver, No. 16-13162 (11th Cir. June 4 29, 2016). In his 2016 motion, Petitioner contended that his 5 prior convictions for battery on a police officer, attempted 6 second-degree murder, and carrying a concealed weapon no longer 7 qualified as ACCA predicate offenses after Johnson. Mot. at 13- 8 17, Oliver v. United States, No. 1:16-cv-22665-PCH (S.D. Fla. 9 June 26, 2016), ECF No. 1. Thus, his “sentence was imposed in 10 excess of the statutory maximum.” Id. at 1. The district court 11 held that even not considering some of the challenged 12 convictions, Petitioner still had three qualifying predicate 13 offenses under the ACCA and Johnson. See Oliver, 2017 WL 384245, 14 at *5. On March 2, 2018, the 11th Circuit vacated that decision 15 and remanded because the district court had failed to determine 16 whether Petitioner “satisfied the requirements of section 17 2255(h), . . . a threshold jurisdictional issue that must be 18 decided before delving into the merits of the successive motion.” 19 Oliver v. United States, 714 F. App’x 971, 972 (11th Cir. 2018). 20 The remanded motion remains pending in the Southern District of 21 Florida. 22 DISCUSSION 23 As an initial matter, Petitioner did not sign or verify his 24 Petition. (See Pet. at 5.) A “district court may refuse to 25 file, or may dismiss, an unsigned and unverified petition” or 26 “may, if it sees fit, disregard” the defect. Hendricks v. 27 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Although Petitioner 28 signed the “Certificate of Service” (see Pet. at 18), he did not 3 1 attest to the facts in the Petition under penalty of perjury (see 2 id. at 5). Thus, dismissal is appropriate. See, e.g., Gomez v. 3 Macdonald, No. ED CV 13-01367-VBF-SH., 2014 WL 1330528, at *3 4 (C.D. Cal. Mar. 31, 2014) (“[I]n keeping with the customary 5 practice of judges in this district, the Court will exercise its 6 discretion to dismiss the petition without prejudice due to 7 petitioner’s failure to sign and verify the petition.”), am. on 8 denial of recons., 2014 WL 4059938 (C.D. Cal. Aug. 14, 2014). 9 The Court is at any rate without jurisdiction to consider 10 the Petition. Generally, after a conviction and sentence are 11 final, the only mechanism for a federal prisoner to seek relief 12 from judgment is through § 2255. Tripati v. Henman, 843 F.2d 13 1160, 1162 (9th Cir. 1988). Prisoners may generally file only 14 one § 2255 motion, and only within certain strict time limits. 15 See § 2255(f), (h). Under the “savings clause” of § 2255(e), 16 however, a prisoner may file a federal habeas petition when it 17 “appears that the remedy by motion is inadequate or ineffective 18 to test the legality of his detention.” § 2255(e); Harrison v. 19 Ollison, 519 F.3d 952, 956 (9th Cir. 2008). To qualify under 20 that clause, a petitioner must claim that he is actually innocent 21 and not have had an “unobstructed procedural shot” at presenting 22 the claim earlier. Harrison, 519 F.3d at 959. When a federal 23 prisoner files a § 2241 petition, a district court must answer 24 the “threshold jurisdictional question” of whether the petition 25 was properly brought under § 2241 or “is, instead, a disguised 26 § 2255 motion.” Marrero v. Ives, 682 F.3d 1190, 1194 (9th Cir. 27 2012). 28 Petitioner’s § 2241 Petition is a disguised § 2255 motion, 4 1 in which he challenges his 2007 judgment. But he does not even 2 claim that he is actually innocent. Rather, he first contends 3 that he would not have pleaded guilty had his lawyer advised him 4 he would be subject to enhanced sentencing under the ACCA. (See 5 Pet. at 5 (contending that remedy by way of § 2255 motion is 6 inadequate or ineffective “because of the ineffective assistance 7 of counsel during the plea phase of the case” (capitalization 8 altered)), 11 (claiming that he “would have preferred a jury 9 trial” had he known extent of his “sentenc[e] exposure”).) 10 Second, he argues that his prior convictions for battery on a 11 law-enforcement officer and for resisting arrest with violence do 12 not qualify as predicate offenses under Johnson. (See id. at 13 13 (arguing that he “was never tru[]ly a qualifier” for ACCA “and 14 must be resentenced to reflect this fact”).) 15 Actual innocence for purposes of § 2255’s escape hatch means 16 “factual innocence,” “not mere legal insufficiency.” Marrero, 17 682 F.3d at 1192-93 (9th Cir. 2012) (citing Bousley v. United 18 States, 523 U.S. 614, 623 (1998)). Petitioner does not claim — 19 let alone make a factual showing — that he is actually innocent 20 of possessing a firearm as a felon. Moreover, to the extent he 21 argues that he is actually innocent of being a career offender 22 under the ACCA, his claim is foreclosed by Ninth Circuit 23 precedent. See Marerro, 682 F.3d at 1195 (rejecting petitioner’s 24 claim that he was improperly subject to enhanced sentence as 25 “purely legal argument . . . not cognizable as a claim of actual 26 innocence under the escape hatch”); Dorise v. Matevousian, 692 F. 27 App’x 864, 865-66 (9th Cir. 2017) (applying Marrero to reject 28 petitioner’s Johnson-based argument that his sentence was 5 1 improperly enhanced), cert. denied, 138 S. Ct. 1023 (2018). 2 Even if his contentions could constitute “actual innocence,” 3 however, Petitioner would still not deserve relief because he 4 cannot show that he has not already had an unobstructed 5 procedural shot at raising his claims. The legal bases for his 6 § 2241 Petition arose before and are identical to those of the 7 authorized successive § 2255 motion currently pending in the 8 Southern District of Florida. Thus, he has had — and continues 9 to have — an opportunity to litigate the issues raised in the 10 Petition.2 Moreover, that court’s 19-month-and-counting delay in 11 ruling on the § 2255 motion does not render it inadequate or 12 ineffective: “[D]elay in the resolution of a section 2255 motion 13 does not entitle a defendant to bypass [§] 2255 in favor of [§] 14 2241.” United States v. Pirro, 104 F.3d 297, 300 (9th Cir. 15 1997); see also, e.g., Rivas-Lopez v. Rivera, 107 F. Supp. 3d 16 977, 979 (E.D. Ark. 2015) (sentencing court’s 32-month delay in 17 ruling on § 2255 motion did not render it inadequate). 18 Petitioner has not shown that § 2255 is inadequate or 19 20 2 Petitioner claims he had a request for a certificate of appealability pending as of January 2019 “but has received no 21 official response” and thus has “move[d] on to this next level in 22 the mind set that [it] has been denied.” (Pet. at 10.) But he is incorrect; the district court has ruled on each of his requests for 23 a certificate of appealability, denying two filed in connection with his 2010 motion, see Orders, Oliver v. United States, No. 24 1:10-cv-24446-PCH (S.D. Fla. Aug. 4, 2011 & Feb. 14, 2013), ECF Nos. 17 & 30, and another in connection with his most recent 25 motion, see Order, Oliver, No. 1:16-cv-22665-PCH, ECF No. 18. Nor 26 does Petitioner have any requests for certificates of appealability pending before the 11th Circuit, which denied such applications in 27 2012 and 2013. See Order, Oliver v. United States, No. 11-14044 (11th Cir. Jan. 24, 2012); Order, Oliver v. United States, No. 13- 28 10466 (11th Cir. June 3, 2013). 6 1 || ineffective as a means of providing him relief. His § 2241 2 || “petition” is a disguised § 2255 motion, which was not only filed 3 the wrong court but is impermissibly successive as well. See 2255(e), (h); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 5 ||1999) (per curiam). His Petition must therefore be summarily 6 |} dismissed under Local Rule 72-3.2 for lack of jurisdiction.° 7 ACCORDINGLY, IT IS ORDERED that Petitioner’s Petition for a 8 || Writ of Habeas Corpus is denied and this action be dismissed. 9 10 11 du 12 || DATED: October 21, 2019 ANDRE BIROTTE JR. 13 U.S. DISTRICT JUDGE 14 Presented by: 15 f ) 16 fe Je Rosenbluth 17 Magistrate Judge 18 19 20 21 22 23 24 25 | ————————————— 26 > Local Rule 72-3.2 provides that “if it plainly appears from the face of the petition and any exhibits annexed to it that the 27 |) petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it anda 28 || proposed judgment to the District Judge.”