(HC) Buffington v. Thompson ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CALVIN BUFFINGTON, No. 2:19-cv-02192 GGH P 12 Petitioner, 13 v. ORDER 14 PAUL R. THOMPSON, 15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. However, the pending habeas petition appears to be 19 more appropriately brought as a 28 U.S.C. § 2255 motion as it challenges the validity or 20 constitutionality of petitioner’s conviction issued by the Northern District of Illinois, Eastern 21 Division. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). Accordingly, the 22 undersigned will order that this case be transferred to the appropriate district for review. 23 “The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by 24 which a federal prisoner may test the legality of his detention, and that restrictions on the 25 availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” 26 Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (internal citations omitted). However, 27 under the savings clause, also often referred to as the “escape hatch,” of § 2255, a federal prisoner 28 may file a petition under § 2241 to “contest the legality of a sentence where his remedy under § 1 2255 is ‘inadequate or ineffective to test the legality of his detention.’” Hernandez v. Campbell, 2 204 F.3d 861, 865 (9th Cir. 2000) (quoting 28 U.S.C. § 2255). “A § 2241 petition is available 3 under the ‘escape hatch’ of § 2255 when a petitioner (1) makes a claim of actual innocence, and 4 (2) has not had an ‘unobstructed procedural shot’ at presenting that claim.” Stephens, supra, 464 5 F.3d at 898 (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003)). Here, petitioner 6 alleges he should be allowed to proceed under § 2241 based on a claim of actual innocence. ECF 7 No. 1 at 15-19, 22-25. However, review of petitioner’s claim for actual innocence is one based 8 on legal innocence. ECF No. 1 at 15-19; see Bousley v. United States, 523 U.S. 614, 623 (1998) 9 (“It is important to note in this regard that ‘actual innocence’ means factual innocence, not mere 10 legal insufficiency.”) Petitioner fails to meet his burden in showing that “the remedy by motion 11 [under § 2255] is inadequate or ineffective to test the validity of his detention” and relief pursuant 12 to § 2241 is appropriate. Ivy, supra, 328 F.3d at 1059. Accordingly, because a § 2255 petition 13 may be brought only in the sentencing court, the undersigned will transfer this case to the 14 Northern District of Illinois for review. 15 Accordingly, in the furtherance of justice, IT IS HEREBY ORDERED that this matter is 16 transferred to the United States District Court for the Northern District of Illinois. 17 Dated: November 22, 2019 /s/ Gregory G. Hollows 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28