(HC) Benitez-Torres v. Young ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JESUS BENITEZ-TORRES, No. 1:19-cv-01597-LJO-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No. 5) 13 ORDER DISMISSING PETITION FOR 14 v. WRIT OF HABEAS CORPUS 15 ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE 16 CASE S. YOUNG, 17 ORDER DECLINING TO ISSUE Respondent. CERTIFICATE OF APPEALABILITY 18 19 20 Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of 21 habeas corpus pursuant to 28 U.S.C. § 2241. On November 19, 2019, the Magistrate Judge 22 assigned to the case issued Findings and Recommendation to dismiss the petition for lack of 23 jurisdiction. (Doc. No. 5.) This Findings and Recommendation was served upon all parties and 24 contained notice that any objections were to be filed within thirty (30) days from the date of 25 service of that order. On December 11, 2019, Petitioner filed objections to the Magistrate Judge’s 26 Findings and Recommendations. (Doc. No. 6.) 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 28 de novo review of the case. Petitioner claims he satisfies the savings clause set forth in § 2255 1 because he is actually innocent of a sentencing enhancement. As noted by the Magistrate Judge, 2 the Ninth Circuit noted in Marrero v. Ives that circuit courts “are in accord that a petitioner 3 generally cannot assert a cognizable claim of actual innocence of a noncapital sentencing 4 enhancement.” Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) (collecting cases). Here, 5 Petitioner is asserting a purely legal claim that his prior conviction for illegal entry did not qualify 6 for a sentence enhancement. He does not claim factual innocence of his crimes which is a 7 requirement in this circuit to qualify under the savings clause. Stephens v. Herrera, 464 F.3d 895, 8 898 (9th Cir. 2006). 9 In addition, Petitioner fails to demonstrate that he did not have an unobstructed procedural 10 opportunity to present his claim. In fact, Petitioner presented his claim in a successive § 2255 11 motion to the sentencing court. See United States v. Benitez-Torres, Case No. 2:01-cr-00249 12 (S.D. Tex.) (Doc. No. 224.) The § 2255 motion was dismissed as an unauthorized successive 13 motion on December 31, 2018. Id. (Doc. No. 225.) Petitioner was advised that he was required 14 to first seek authorization from the Fifth Circuit before filing a second § 2255 motion, and that 15 until he did so the court did not have jurisdiction. Id. There is no indication that Petitioner has 16 done so, but the avenue is or was available. In any case, Petitioner fails to argue that “the legal 17 basis for [his] claim did not arise until after he had exhausted his direct appeal and first § 2255 18 motion.” Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011). 19 Having carefully reviewed the entire file, including Petitioner's objections, the Court 20 concludes that the Magistrate Judge’s Findings and Recommendation is supported by the record 21 and proper analysis. Petitioner's objections present no grounds for questioning the Magistrate 22 Judge's analysis. 23 In addition, the Court declines to issue a certificate of appealability. A prisoner seeking a 24 writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, 25 and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335- 26 336 (2003). A successive petition under 28 U.S.C. § 2255 that is disguised as a § 2241 petition 27 requires a certificate of appealability. Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008); 28 Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). The controlling statute in determining 1 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 2 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit 3 in which the proceeding is held. 4 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person 5 charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 6 (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may 7 not be taken to the court of appeals from— 8 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 9 (B) the final order in a proceeding under section 2255. 10 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has 11 made a substantial showing of the denial of a constitutional right. 12 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 13 14 If a court denies a petitioner’s petition, the court may only issue a certificate of 15 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 16 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 17 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 18 been resolved in a different manner or that the issues presented were ‘adequate to deserve 19 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 20 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 21 In the present case, the Court finds that Petitioner has not made the required substantial 22 showing of the denial of a constitutional right to justify the issuance of a certificate of 23 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 24 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 25 proceed further. Thus, the Court DECLINES to issue a certificate of appealability. 26 Accordingly, the Court orders as follows: 27 1. The Findings and Recommendations, filed November 19, 2019 (Doc. No. 5), is 28 ADOPTED IN FULL; 1 2. The petition for writ of habeas corpus is DISMISSED; 2 3. The Clerk of Court is DIRECTED to ENTER JUDGMENT and close the file; and, 3 4. The Court DECLINES to issue a certificate of appealability. 4 This order terminates the action in its entirety. 5 IT IS SO ORDERED. 6 7 Dated: December 13, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28