Gygi v. Warden, FCI Dublin ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAMELA JEAN GYGI, Case No. 20-cv-00302-JD 8 Petitioner, ORDER FOR RESPONDENT TO 9 v. SHOW CAUSE 10 WARDEN, FCI DUBLIN, Respondent. 11 12 13 Pamela Gygi, a federal prisoner incarcerated at F.C.I. Dublin has filed a pro se petition for 14 writ of habeas corpus pursuant to 28 U.S.C. § 2241. She has paid the filing fee. 15 BACKGROUND 16 Petitioner was convicted in the District of Oregon on May 3, 2017, for her participation in 17 a murder-for-hire scheme (18 U.S.C. § 1958) and possession of a firearm in furtherance of the 18 murder-for-hire scheme (18 U.S.C. § 924(c)). Petition at 2; United States v. Gygi, Case No:15-cr- 19 0305-AA (District of Oregon), Docket No. 63 at 1. She states that she did not appeal but did 20 challenge the conviction by filing a motion to vacate her sentence pursuant to 28 U.S.C. § 2255. 21 Petition at 4. Petitioner argued in the § 2255 motion that the Court lacked jurisdiction because the 22 crime occurred in Oregon which she argued was not within a federal territory in light of her 23 “Sovereign Citizen” beliefs. United States v. Gygi, Case No:15-cr-0305-AA (District of Oregon), 24 Docket No. 63 at 3. The Court denied the § 2255 motion. Id. at 4. 25 26 27 1 DISCUSSION 2 STANDARD OF REVIEW 3 A district court must determine at the outset whether a petition filed by a federal prisoner is 4 pursuant to 28 U.S.C. § 2241 or 28 U.S.C. § 2255, because congress has given jurisdiction over 5 these petitions to different courts. Hernandez v. Campbell, 204 F.3d 861, 865-66 (9th Cir. 2000). 6 A petition under § 2241 must be heard in the district of confinement, whereas if the petition is 7 properly brought under § 2255, it must be heard by the sentencing court. Id. at 865. 8 A federal prisoner who seeks to challenge the legality of confinement must generally rely on a 9 § 2255 motion to do so. See Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (“The general 10 rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner 11 may test the legality of his detention, and that restrictions on the availability of a § 2255 motion 12 cannot be avoided through a petition under 28 U.S.C. § 2241.” (citation omitted)). There is, 13 however, an exception to that general rule. Under the “escape hatch” of § 2255, a federal prisoner 14 may file a § 2241 petition if, and only if, the remedy under § 2255 is “inadequate or ineffective to 15 test the legality of his detention.” Id. (internal quotation marks omitted). We have held that a 16 prisoner may file a § 2241 petition under the escape hatch when the prisoner “(1) makes a claim of 17 actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.” 18 Id. at 898 (internal quotation marks omitted). 19 20 LEGAL CLAIM 21 As the sole ground for federal habeas relief, petitioner argues that her § 924(c) conviction 22 must be vacated for resentencing because the underlying murder-for-hire offense no longer 23 categorically qualifies as a “crime of violence” in light of United States v. Davis, 139 S.Ct. 2319 24 (2019). Petitioner also contends that this petition meets the requirements for the escape hatch of § 25 2255. In Davis, the United States Supreme Court found that the residual clause in § 924(c)(3)(B) 26 27 1 is unconstitutionally vague. Id. at 2336. Liberally construed, petitioner’s claim is sufficient to 2 require a response.1 3 4 5 CONCLUSION 6 1. The Clerk shall serve by regular mail a copy of this order and the petition and all 7 attachments thereto on respondent and respondent’s attorney, the United States Attorney for the 8 Northern District of California. The Clerk also shall serve a copy of this order on petitioner. 9 2. Respondent shall file with the Court and serve on petitioner, within fifty-six (56) 10 days of the issuance of this order, an answer showing cause why a writ of habeas corpus should 11 not be granted. Respondent shall file with the answer and serve on petitioner a copy of all 12 portions of the relevant trial record that have been transcribed previously and that are relevant to a 13 determination of the issues presented by the petition. 14 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 15 Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer. 16 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 17 answer within fifty-six (56) days from the date this order is entered. If a motion is filed, petitioner 18 shall file with the Court and serve on respondent an opposition or statement of non-opposition 19 within twenty-eight (28) days of receipt of the motion, and respondent shall file with the Court and 20 serve on petitioner a reply within fourteen (14) days of receipt of any opposition. 21 4. Petitioner is reminded that all communications with the Court must be served on 22 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 23 the Court informed of any change of address and must comply with the Court’s orders in a timely 24 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 25 26 1 The Court notes that the Ninth Circuit recently held that a petitioner’s claim of actual innocence of a noncapital sentence under Descamps v. United States, 570 U.S. 254 (2013) and Mathis v. 27 United States, 136 S.Ct. 2243 (2016), including a claim that a petitioner’s sentence exceeds the 1 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir. 2 1997) (Rule 41(b) applicable in habeas cases). 3 IT IS SO ORDERED. 4 Dated: March 16, 2020 5 6 JAMES TO 7 United Stftes District Judge 8 9 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 PAMELA JEAN GYGI, 4 Case No. 20-cv-00302-JD Plaintiff, 5 ‘ Vv. CERTIFICATE OF SERVICE 5 WARDEN, FCI DUBLIN, Defendant. 8 9 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 10 District Court, Northern District of California. 11 12 That on March 16, 2020, ISERVED a true and correct copy(ies) of the attached, by 13 = placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 14 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery 15 receptacle located in the Clerk's office. Q 16 = 17 || Pamela Jean Gygi ID: 76930-065 FCI Dublin Z 18 5701 8th St.-Camp Parks DUBLIN, CA 94568 19 20 21 Dated: March 16, 2020 22 Susan Y. Soong 23 Clerk, United States District Court 24 25 By: A Zé Low 26 LI . CLARK, Deputy Clerk to the 7 Honorable JAMES DONATO 28