(HC) Capps v. Ciolli ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS CAPPS, Case No. 1:20-cv-00766-AWI-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DENYING 13 v. RESPONDENT’S MOTION TO DISMISS, AND REFERRING MATTER BACK TO 14 CIOLLI, MAGISTRATE JUDGE 15 Respondent. (ECF Nos. 10, 17) 16 17 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241. This matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 4, 2021, the Magistrate Judge issued Findings and Recommendation that 21 recommended Respondent’s motion to dismiss be denied. (ECF No. 17). On August 16, 2021, 22 Respondent filed objections. (ECF No. 18). On August 26, 2021, Petitioner filed a reply to the 23 objections. (ECF No. 20). 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 25 a de novo review of the case. Having carefully reviewed the entire file, including Respondent’s 26 objections, the Court concludes that the Findings and Recommendation is supported by the 27 record and proper analysis, and there is no need to modify the Findings and Recommendation. /// 1 “Generally, motions to contest the legality of a sentence must be filed under § 2255,” 2 Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000), but a “federal prisoner may file a 3 habeas petition under § 2241 to challenge the legality of a sentence when the prisoner’s remedy 4 under § 2255 is ‘inadequate or ineffective to test the legality of his detention,’” Harrison v. 5 Ollison, 519 F.3d 952, 956 (9th Cir. 2008). “[A] § 2241 petition is available under the ‘escape 6 hatch’ of § 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has not had an 7 ‘unobstructed procedural shot’ at presenting that claim.” Stephens v. Herrera, 464 F.3d 895, 898 8 (9th Cir. 2006) (citations omitted). 9 In this circuit, a claim of actual innocence for purposes of the escape hatch of § 2255 is tested by the standard articulated by the 10 Supreme Court in Bousley v. United States, 523 U.S. 614, 118 11 S.Ct. 1604, 140 L.Ed.2d 828 (1998): “To establish actual innocence, petitioner must demonstrate that, in light of all the 12 evidence, it is more likely than not that no reasonable juror would have convicted him.” Id. at 623, 118 S.Ct. 1604 (internal quotation 13 marks omitted); see also Lorentsen, 223 F.3d at 954 (quoting this 14 passage from Bousley). 15 Stephens, 464 F.3d at 898. 16 In Marrero v. Ives, 682 F.3d 1190 (9th Cir. 2012), the Ninth Circuit “left open the 17 ‘question whether a petitioner may ever be actually innocent of a noncapital sentence for the 18 purpose of qualifying for the escape hatch.’” Allen v. Ives, 950 F.3d 1184, 1189 (9th Cir. 2020) 19 (quoting Marrero, 682 F.3d at 1193). In Allen v. Ives, that question was answered in the 20 affirmative. 950 F.3d at 1189–90. The petitioner in Allen “filed a § 2241 petition, relying on 21 Mathis and Descamps, to challenge his sentence as a career offender.” Shepherd v. Unknown 22 Party, Warden, FCI Tucson, 5 F.4th 1075, 1077 (9th Cir. 2021) (citing Allen, 950 F.3d at 1188– 23 89). The petitioner had been sentenced when the sentencing guidelines were mandatory, and the 24 Ninth Circuit “held that the defendant could establish actual innocence of the mandatory 25 sentencing enhancement” for purposes of qualifying for the escape hatch. Shepherd, 5 F.4th at 26 1077 (citing Allen, 950 F.3d at 1189–90). Subsequently, the Ninth Circuit clarified that “based 27 on our reasoning in Allen, the concurrence to the denial of rehearing en banc in that case, and persuasive precedent from other circuits and district courts within our own circuit, we limit 1 Allen’s application to petitioners who ‘received a mandatory sentence under a mandatory 2 sentencing scheme.’” Shepherd, 5 F.4th at 1078 (quoting Allen v. Ives, 976 F.3d 863, 869 (9th 3 Cir. 2020) (W. Fletcher, J., concurring in denial of reh’g en banc)). 4 In this case, Petitioner was sentenced to a statutory mandatory sentence of life 5 imprisonment post-Booker. The undersigned has previously applied Allen to a petitioner who 6 was sentenced to a statutory mandatory sentence of life imprisonment post-Booker, as has 7 another district judge in this district. See Lii v. Ciolli, No. 1:20-cv-00786-AWI-EPG, 2021 U.S. 8 Dist. LEXIS 97930 (E.D. Cal. May 24, 2021), adopting findings and recommendation, 2021 U.S. 9 Dist. LEXIS 68181 (E.D. Cal. Apr. 5, 2021); Gonzalez v. Ciolli, No. 1:20-cv-00724-DAD-SKO, 10 2021 U.S. Dist. LEXIS 50406, at *8–9 (E.D. Cal. Mar. 16, 2021) (“The fact that petitioner was 11 sentenced post-Booker when the sentencing guidelines were advisory is irrelevant to the 12 determination of whether petitioner can satisfy the demanding actual innocence exception to 13 qualify for the escape hatch jurisdiction under 28 U.S.C. § 2255(e). Petitioner was sentenced to 14 the statutory mandatory sentence of life imprisonment pursuant to 21 U.S.C. §§ 841, 851 – a 15 mandatory sentence under a mandatory sentencing scheme as described by the Ninth Circuit in 16 Allen. Accordingly, the undersigned declines to adopt the magistrate judge’s recommendation 17 that this case be summarily dismissed due to lack of jurisdiction.”). 18 In the objections, Respondent argues that Allen is “limited to cases wherein a defendant, 19 unlike Petitioner Capps, received a pre-Booker mandatory guideline sentence,” and that there is 20 no § 2241 jurisdiction for petitioners sentenced under the advisory sentencing guidelines. (ECF 21 No. 18 at 1, 2). Here, however, Petitioner did not receive an advisory guidelines sentence, but 22 was sentenced to a statutory mandatory sentence of life imprisonment. Further, the decisions 23 cited by Respondent in support of this argument are distinguishable from the instant matter 24 because they involved a plea-bargained “term of imprisonment not to exceed the low end of the 25 applicable guidelines range, as determined by the Court at the time of sentencing,” Jaramillo v. 26 United States, No. CV-19-8017-PCT-SPL (JFM), 2020 U.S. Dist. LEXIS 83075, at *3 (D. Ariz. 27 May 11, 2020), report and recommendation adopted, 2020 U.S. Dist. LEXIS 98123 (D. Ariz. 1 || Martinez, No. EDCV 20-1419-VAP (KK), 2021 U.S. Dist. LEXIS 51696, at *7 (C.D. Cal. Jan. 2 | 12, 2021), report and recommendation adopted, 2021 U.S. Dist. LEXIS 66853 (C.D. Cal. Apr. 5, 3 | 2021), rather than a statutory mandatory sentence like Petitioner. 4 Respondent also contends that “[flollowing Shepherd, this Court has consistently 5 |] recommended denial of jurisdiction under § 2241 to petitioners claiming Allen actual innocence to post-Booker, advisory guidelines, sentence enhancement.” (ECF No. 18 at 3). Again, 7 | Petitioner did not receive an advisory guidelines sentence, and the cases to which Respondent 8 || cites are distinguishable because they mvolved an “accepted plea-bargained ... sentence,” 9 || Barrett v. Ciolli, No. 1:20-cv-00599-HBK, 2021 U.S. Dist. LEXIS 139050, at *3 (E.D. Cal. July 10 | 26, 2021), and “a sentence . . . which was at the low end of the advisory sentencing guidelines,” 11 | Nichols y. Ciolli, No. 1:20-cv-00785-NONE-HBK, 2021 U.S. Dist. LEXIS 152227, at *3 (E.D. 12} Cal. Aug. 12, 2021) Gnternal quotation marks and citation omitted), rather than a statutory 13 | mandatory sentence like Petitioner. 14 Respondent fails to demonstrate how Petitioner’s statutory mandatory sentence of life 15 | imprisonment is not “a mandatory sentence under a mandatory sentencing scheme.” Shepherd, 5 16 | F.4th at 1078 Gnternal quotation marks and citation omitted). Accordingly, the Court finds that 17 || Allen is applicable and that Petitioner may proceed with his § 2241 petition pursuant to the 18 || escape hatch. 19 Based on the foregoing, IT IS HEREBY ORDERED that: 20 1. The Findings and Recommendation issued on August 4, 2021 (ECF No. 17) is 21 ADOPTED IN FULL; 22 2. Respondent’s motion to dismiss (ECF No. 10) is DENIED; and 23 3. The matter is referred back to the Magistrate Judge for further proceedings. 24 ITIS SO ORDERED. 26 Dated: _ September 2, 2021 xn □□ TRICn UDGE 27 28