1 WO MH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James Mozie, No. CV-24-00316-TUC-SHR (MSA) 10 Petitioner, 11 v. ORDER 12 M. Gutierrez, 13 Respondent. 14 15 On June 24, 2024, Petitioner James Mozie, who is confined in the United States 16 Penitentiary-Tucson, filed a pro se Petition Under 28 U.S.C. § 2241 for Writ of Habeas 17 Corpus by a Person in Federal Custody. On September 24, 2024, he paid the $5.00 filing 18 fee. On September 30, 2024, he filed an Amended Petition (Doc. 7). The Court will 19 dismiss the Amended Petition, and this action, for lack of jurisdiction. 20 I. Amended Petition 21 Petitioner raises one ground for relief from his conviction and sentence in United 22 States v. Mozie, CR-11-60121 (S.D. Fla.). Specifically, he claims his criminal indictment 23 was constructively amended to alter the level of scienter required for a conviction under 18 24 U.S.C. § 1591. 25 II. Discussion 26 A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is generally the 27 appropriate method for challenging a federally imposed conviction or sentence, including 28 a challenge that “the sentence was imposed in violation of the Constitution or laws of the 1 United States, or that the court was without jurisdiction to impose such sentence, or that 2 the sentence was in excess of the maximum authorized by law.” § 2255(a); see Tripati v. 3 Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). A § 2241 petition for writ of habeas corpus 4 is not a substitute for a motion under § 2255. McGhee v. Hanberry, 604 F.2d 9, 10 (5th 5 Cir. 1979). 6 The Court will not consider a § 2241 petition by a prisoner authorized to apply for 7 § 2255 relief “if it appears that the applicant has failed to apply for relief, by motion, to the 8 court which sentenced him, or that such court has denied him relief, unless it also appears 9 that the remedy by motion is inadequate or ineffective to test the legality of his detention.” 10 § 2255(e); United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). This exception is 11 narrow. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). 12 The § 2255 remedy is not inadequate or ineffective merely because the statute of 13 limitations bars Petitioner from filing a motion under § 2255, the sentencing court has 14 denied relief on the merits, or § 2255 prevents Petitioner from filing a second or successive 15 petition. See Ivy, 328 F.3d at 1059; Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999); 16 Charles v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999); Tripati, 843 F.2d at 1162. The 17 § 2255 remedy is inadequate or ineffective “when a petitioner (1) makes a claim of actual 18 innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.” 19 Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008) (quoting Stephens v. Herrera, 464 20 F.3d 895, 898 (9th Cir. 2006)). In determining whether a petitioner has had an unobstructed 21 procedural shot to pursue his claim, the Court considers “(1) whether the legal basis for 22 petitioner’s claim ‘did not arise until after he had exhausted his direct appeal and first 23 § 2255 motion;’ and (2) whether the law changed ‘in any way relevant’ to petitioner’s claim 24 after that first § 2255 motion.” Id. at 960 (quoting Ivy, 328 F.3d at 1060, 1061). 25 “The burden of coming forward with evidence affirmatively showing the 26 inadequacy or ineffectiveness of the § 2255 remedy rests with the petitioner.” McGhee, 27 604 F.2d at 10; see Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). Petitioner 28 has failed to meet this burden. First, it is not clear his claim qualifies as a claim of “actual innocence.” See Bousley v. United States, 523 U.S. 614, 623 (1998) (“‘[A]ctual innocence’ 2| means factual innocence... .”); see also Elkins v. McKinney, No. CV2202521RGKRAO, 3| 2022 WL 1805430, at *4 (C.D. Cal. June 2, 2022) (“Construing the Petition’s claims of a 4 defective indictment and constructive amendment/defective jury instructions/fraud on the 5 | court as ones relating to due process, these are not claims of actual innocence as that term 6 | is meantin the context of section 2255’s escape hatch because Petitioner does not challenge the factual evidence leading to his conviction.”), certificate of appealability denied, No. 8 | 22-55656, 2023 WL 9074626 (9th Cir. Oct. 25, 2023). Even if Petitioner’s claim 9 | encompasses an assertion of actual innocence, he has not shown he lacked an unobstructed 10 | procedural shot at presenting it. On the contrary, both the District Court for the Southern 11 | District of Florida and the Eleventh Circuit Court of Appeals have addressed Petitioner’s 12 | claim that his indictment was constructively amended. Mozie, CR-11-60121, Doc. 253 at 13 | 4-6; Mozie v. United States, No. 12-12538 (11th Cir.), Doc. 129-1 at 19-24. Accordingly, 14 Petitioner does not qualify to proceed under § 2241, and the Court will dismiss his 15 | Amended Petition for lack of jurisdiction. See § 2255(a), (e); Tripati, 843 F.2d at 1163. 16} ITIS ORDERED: 17 (1) Petitioner’s Amended Petition Under 28 U.S.C. § 2241 (Doc. 7) and this case 18 | are dismissed. 19 (2) The Clerk of Court must enter judgment accordingly and close this case. 20 (3) Although Petitioner has brought his claims in a § 2241 petition, a certificate of appealability is required where a § 2241 petition attacks the petitioner’s conviction or sentence. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). Pursuant to Rule 23 | of the Rules Governing Section 2255 Cases, in the event Petitioner files an appeal, 24 | the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court’s procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 26 | 484 (2000). 27 Dated this 18th day of October, 2024. rf “tt Taal Ae Scott H. Rash -3- _/ United States District Judge