Gygi v. Warden, FCI Dublin ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 PAMELA JEAN GYGI, Case No. 20-cv-00302-JD 9 Petitioner, ORDER RE PETITION FOR WRIT OF 10 v. HABEAS CORPUS AND CERTIFICATE OF APPEALABILITY 11 WARDEN, FCI DUBLIN, Re: Dkt. Nos. 9, 12 Respondent. 12 13 14 Pamela Gygi, a federal prisoner incarcerated at F.C.I. Dublin, filed a pro se petition for 15 writ of habeas corpus pursuant to 28 U.S.C. § 2241. She was convicted in the District of Oregon. 16 As the sole ground for federal habeas relief, petitioner argues that her Section 924(c) conviction 17 must be vacated for resentencing because the underlying murder-for-hire offense no longer 18 categorically qualifies as a “crime of violence” in light of United States v. Davis, 139 S.Ct. 2319 19 (2019). Petitioner also filed a motion for immediate release pursuant to the CARES Act in light of 20 the current public health crisis. 21 Respondent filed an answer and says that Gygi should have presented her habeas claim in 22 an 28 U.S.C. § 2255 motion in the District of Oregon, and filed her motion CARES Act motion 23 there, too. Gygi has a pending Section 2255 motion in the District of Oregon raising the same 24 claims. Gygi failed to address respondent’s arguments in her traverse. She was provided an 25 additional opportunity to address the arguments. Gygi filed additional briefing but has still not 26 addressed respondent’s arguments. 27 A district court must determine at the outset whether a petition filed by a federal prisoner is 1 petitions to different courts. Hernandez v. Campbell, 204 F.3d 861, 865-66 (9th Cir. 2000). A 2 petition under Section 2241 must be heard in the district of confinement, while a Section 2255 3 petition must be heard by the sentencing court. Id. at 865. 4 A federal prisoner who seeks to challenge the legality of confinement typically should 5 bring a Section 2255 motion. See Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (“The 6 general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal 7 prisoner may test the legality of his detention, and that restrictions on the availability of a Section 8 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” (citation omitted)). 9 There is an exception. Under the “escape hatch” of Section 2255, a federal prisoner may file a 10 Section 2241 petition if, and only if, the remedy under Section 2255 is “inadequate or ineffective 11 to test the legality of his detention.” Id. (internal quotation marks omitted). Specifically, a 12 prisoner may file a Section 2241 petition under the escape hatch when the prisoner “(1) makes a 13 claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that 14 claim.” Id. at 898 (internal quotation marks omitted). 15 Gygi’s challenge to her Section 924(c) conviction is based on United States v. Davis, 139 16 S.Ct. 2319 (2019), which is a new substantive rule that is retroactive. This claim can be presented 17 in a Section 2255 in the District of Oregon. Gygi has a “procedural shot” at presenting this claim, 18 and so the escape hatch does not apply and this Section 2241 petition must be dismissed. 19 On January 13, 2020, Gygi filed a Section 2255 motion in the District of Oregon. United 20 States v. Gygi, Case No. 15-CR-00305 (D. Or.) Respondent noted in its response to the Section 21 2255 motion in that district, that her argument may have merit and while she should not be 22 released, she should be resentenced. Id., Docket No. 72 at 3. The District of Oregon ordered 23 counsel to be appointed on June 30, 2020. Id., Docket No. 74. In light of the above, Gygi’s 24 Section 2241 motion is DENIED, and she may proceed in the District of Oregon. Because the 25 Section 2241 motion is denied, her motion for immediate release pursuant to the CARES Act is 26 also denied and she may proceed with that claim in the District of Oregon.1 A Certificate of 27 1 Appealability and all pending motions (Docket Nos. 9, 12) are DENIED. 2 IT IS SO ORDERED. 3 Dated: August 13, 2020 4 5 JAMES DDMATO 6 United Stftes District Judge 7 8 9 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 Docket No. 74 at 2-3. The Court did liberally construe the motion as a request for compassionate 9g || release under 18 U.S.C. § 2582(c)(1)(A) and provided Gygi an opportunity to demonstrate that she made a compassionate release request to the Warden. J/d. at 3.