(HC) Brian L. Jones v. Warden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN L. JONES, Case No. 1:21-cv-00933-AWI-HBK 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS PETITION FOR WRIT OF HABEAS CORPUS 14 WARDEN, USP-Atwater FOURTEEN-DAY OBJECTION PERIOD 15 Respondent. (Doc. No. 1, 13) 16 17 18 19 Petitioner, Brian L. Jones (“Petitioner”), a federal prisoner proceeding pro se, initiated this 20 case by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 on June 15, 2021. 21 (Doc. No. 1, Petition). Respondent filed a Motion to Dismiss the petition for lack of jurisdiction 22 on October 13, 2021. (Doc. No. 13). Despite being directed file a response to the motion to 23 dismiss within twenty-one days of service of Respondent’s response, Petitioner elected not to file 24 an opposition. (Doc. No. 4 at 2). For the following reasons, the undersigned recommends 25 Respondent’s Motion to Dismiss be granted, and the Petition be dismissed. 1 26 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2019). 1 I. BACKGROUND 2 Petitioner, a federal prisoner, is serving a reduced2 300-month sentence for his 2008 3 conviction, after jury trial, for conspiracy to possess with intent to distribute 50 grams or more of 4 cocaine base and 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 5 entered by the U.S. District Court for the Southern District of Indiana (“SDIN”). See Case No. 6 3:07-cr-00024-RLY-CMM, Crim. Doc. No. 334.3 Because Petitioner had committed two prior 7 felony drug offenses, the United States filed a prior felony information with the court pursuant to 8 21 U.S.C. § 851 thereby increasing his mandatory minimum sentence to life. Crim. Doc. Nos. 9 154, 335. In 2009, Petitioner originally received a mandatory life sentence followed by 10 supervised release term of 10 years; and in 2010 Petitioner’s conviction and sentence were 11 affirmed on direct appeal. Crim. Doc. No. 395; United States v. Jones, 600 F.3d 847 (7th Cir. 12 2010). 13 Petitioner filed several motions in the SDIN to vacate his conviction and sentence under 14 28 U.S.C. § 2255, including: a demand for retrial for ineffective assistance of counsel; a challenge 15 to his sentence under Mathis;4 and, upon receiving permission from the Seventh Circuit to file a 16 successive motion under § 2255, a motion to vacate his sentence pursuant to Johnson v. United 17 States, 576 U.S. 591 (2015) arguing that his sentence was unconstitutionally enhanced. Crim 18 Doc. Nos. 600, 707 (refiled and modified in 16-cv-00165-RLY, Doc. No. 1), 713. All of 19 Petitioner’s § 2255 motions were denied. Crim. Doc. Nos. 666, 714, 761. In September 2019, 20 Petitioner filed a motion for resentencing under § 404 of the First Step Act of 2018. Crim. Doc. 21 No. 813. In March 2020, the SDIN found Petitioner eligible for a sentence reduction under the 22 First Step Act, and the court considered whether a sentence reduction was warranted under the 23 discretionary factors stated in 18 U.S.C. § 3553(a). Crim. Doc. No. 850. The SDIN noted that 24 given Petitioner’s “specific individual procedural history, [his] guideline range [was] 360 months 25 to life imprisonment.” Id. However, the court found that Petitioner’s efforts to rehabilitate 26 27 2 As noted infra, Petitioner was granted a reduced sentence under the First Step Act. 3 The undersigned cites to the record in Petitioner’s underlying SDIN criminal case as “Crim. Doc. No. _.” 28 4 Mathis v. United States, 136 S. Ct. 2243 (2016). 1 himself and his conduct in prison warranted a sentence reduction below the guideline range, and 2 the SDIN reduced Petitioner’s previously imposed life sentence to 300 months’ imprisonment. 3 Id.; see also Crim. Doc. No. 856 (denying Petitioner’s motion to further reduce his sentence). 4 Under the guise of the instant § 2241 petition, Petitioner raises one ground for relief: 5 because his “prior state convictions for dealing in cocaine” do not qualify as controlled substance 6 offenses under § 4B1.2 under Mathis v. United States, 136 S. Ct. 2243 (2016) and Allen v. Ives, 7 950 F.3d 1184 (9th Cir. 2020), he is actually innocent of the career offender enhancement. (Doc. 8 1 at 6). Petitioner argues § 2255 is inadequate to challenge his sentence as he could not have 9 raised a claim in his previous § 2255 motions because Mathis is a case “of statutory and not 10 constitutional construction,” and he has not had an unobstructed shot to present his claim. (Doc. 11 No. 1 at 4). Respondent, in its motion to dismiss, argues the Court lacks jurisdiction to review the 12 § 2241 petition and the “escape hatch” of 28 USC § 2255 does not apply. (See generally Doc. 13 No. 13). 14 II. APPLICABLE LAW AND ANALYSIS 15 Although brought under the guise of § 2241, Petitioner challenges the legality of his 16 sentence, which is properly brought via a § 2255 petition in the SDIN court of conviction. A 17 § 2241 petition is reserved for federal prisoners challenging “the manner, location, or conditions 18 of a sentence’s execution.” Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). Federal 19 prisoners seeking to challenge the legality of their confinement must do so through a § 2255 20 motion. See Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). In limited circumstances, 21 federal prisoners may challenge the legality of their confinement through a § 2241 petition by 22 utilizing the so-called “savings clause” or “escape hatch” provision of § 2255(e). Id. at 1192. 23 This portal permits a federal prisoner to challenge the legality of confinement if he can establish 24 that the remedy provided under § 2255 is “inadequate or ineffective to test the legality of his 25 detention.” 28 U.S.C. § 2255(e). To demonstrate a remedy is “inadequate or ineffective” a 26 petitioner must: (1) make a claim of actual innocence, and (2) not had an “unobstructed 27 procedural shot at presenting that claim.” Shepherd v. Unknown Party, Warden, FCI Tucson, 54 28 F.4th 1075, 1076 (9th Cir. 2021). A prisoner cannot circumvent the limitations imposed on 1 successive petitions by restyling his petition as one under § 2241. Stephens v. Herrera, 464 F.3d 2 895, 897 (9th Cir. 2006); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curiam) 3 (petitioner attempted to circumvent AEDPA’s successive motion provisions by bringing § 2255 4 claims in a § 2241 petition). 5 A factual claim of actual innocence requires a petitioner to “demonstrate that, in light of 6 all the evidence, it is more likely than not that no reasonable juror would have convicted him.” 7 Stephens, 464 F.3d at 898 (citing Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. 8 Ed. 2d 828 (1998)). Here, Petitioner does not dispute the validity of his underlying conviction for 9 conspiracy to possess with intent to distribute. Instead, Petitioner argues he is actually innocent 10 of his career offender status because his two predicate offenses no longer qualify as controlled 11 substance offenses under current caselaw, and therefore cannot be considered in determining 12 whether he is subject to an enhanced sentence under the career offender provisions of USSG § 13 4B1.2. (Doc. No. 1 at 6). 14 While not argued with specificity in his petition, Petitioner attaches a copy of Allen v. Ives 15 as support in making his claim of actual innocence. 950 F.3d 1184; (Doc. No. 1 at 9). In Allen, 16 the Ninth Circuit found the petitioner stated a claim of actual innocence and qualified for escape 17 hatch jurisdiction under § 2255(e) because his federal sentence was enhanced under the career 18 offender provisions of USSG §§ 4B1.1 and 4B1.2, due to his underlying state-level controlled 19 substance convictions. Petitioner Allen had been sentenced under the pre-Booker5 mandatory 20 sentencing framework in effect at the time of his sentencing. Petitioner Allen argued because one 21 of his underlying convictions was not a predicate crime for career offender status under newly 22 decided and retroactive Supreme Court case law (Mathis v. United States, 579 U.S. 500 (2016), 23 Descamps v. United States, 570 U.S. 254 (2013)), he was actually innocent of being a career 24 offender. The Ninth Circuit agreed, concluding that if petitioner’s predicate conviction for career 25 offender status under the mandatory sentencing guidelines no longer qualified as such, then the 26 27 28 5 U.S. v. Booker, 543 U.S. 220 (2005). 1 factual predicate for petitioner’s mandatory sentencing enhancement did not exist. 2 However, in Shephard the Ninth Circuit limited its holding in Allen to petitioners who 3 “received a mandatory sentence under a mandatory sentencing scheme.” Shephard, 5 F.4th at 4 1077. Here, unlike Allen, Petitioner was re-sentenced within a discretionary guideline range, not 5 a mandatory sentencing scheme, and the SDIN exercised its discretion by considering § 3553(a) 6 factors and reducing Petitioner’s sentence below the guideline range. Crim. Doc. No. 850 (citing 7 United States v. Garrett, 2019 WL 2603531, at *3 (S.D. Ind. June 25, 2019) (“Under the First 8 Step Act, the Court may ‘exercise the full range of its discretion consistent with the Section 9 3553(a) factors.’”)). Thus, Petitioner cannot show that he is actually innocent of his career 10 offender status; and he fails to make a claim of actual innocence as required by the escape hatch 11 provision of § 2255(e). 12 Because Petitioner has failed to demonstrate he is actually innocent, the Court need not 13 address the “unobstructed procedural shot” prong of the escape hatch. See Wilson v. Thompson, 14 2022 WL 815334, at *4 (E.D. Cal. Mar. 17, 2022) (citing Nichols v. Ciolli, 2021 WL 3563092, at 15 *3 (E.D. Cal. Aug. 12, 2021)); Renderos v. Langford, 2019 WL 1789879, at *4 (C.D. Cal. Apr. 16 24, 2019); Nguyen v. Babcock, 2012 WL 3756864, at *2 (E.D. Cal. Aug. 28, 2012) (“The court 17 need not address whether petitioner had an unobstructed procedural shot at pursuing his claim 18 because, even assuming that he did not, he has failed to show that he is actually innocent.”). 19 Based on the foregoing, Petitioner has failed to satisfy the escape hatch criteria of § 2255, 20 and this court lacks jurisdiction over the § 2241 petition. Because Petitioner has not been granted 21 leave by the Court of Appeals to file a successive § 2255 motion, it would be futile to transfer the 22 petition to the SDIN for consideration as a § 2255 motion. The undersigned recommends that 23 Respondent’s motion to dismiss be granted and the § 2241 Petition be dismissed for lack of 24 jurisdiction. 25 Accordingly, it is RECOMMENDED: 26 1. Respondent’s Motion to Dismiss (Doc. No. 13) be GRANTED. 27 2. The Petition (Doc. No. 1) be DISMISSED. 28 1 NOTICE TO PARTIES 2 These findings and recommendations will be submitted to the United States District Judge 3 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 4 | days after being served with these findings and recommendations, a party may file written 5 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 6 | Findings and Recommendations.” A response to any Objections must be file within fourteen (14) 7 | of the date of service of the Objections. Parties are advised that failure to file objections within 8 | the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 9 | 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 "| Dated: __April 24, 2022 Mihaw. □□□ foareh Zack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28