Larry Henricks v. Richard Ives

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 12 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY DARVELL HENRICKS, No. 13-56304
Petitioner - Appellant, D.C. No. 2:12-cv-09508-FMO
v.
MEMORANDUM*
RICHARD B. IVES, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Submitted December 5, 2014**
Before: HAWKINS, McKEOWN, and FRIEDLAND, Circuit Judges.
Federal prisoner Larry Darvell Henricks appeals pro se from the district
court’s judgment dismissing his 28 U.S.C. § 2241 habeas corpus petition. We
review de novo the dismissal of a section 2241 petition, see Alaimalo v. United
States, 645 F.3d 1042, 1047 (9th Cir. 2011), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Henricks contends that he is actually innocent under Bailey v. United States,
516 U.S. 137 (1995), of using and/or carrying a firearm, in violation of 18 U.S.C.
§ 924(c)(1), and he therefore should be allowed to proceed with his section 2241
petition under the “escape hatch” of 28 U.S.C. § 2255(e). Henricks cannot establish
that he has not had an “unobstructed procedural shot” at presenting this claim
because he could have raised it in a timely section 2255 motion. See Harrison v.
Ollison, 519 F.3d 952, 961 (9th Cir. 2008). Accordingly, the district court properly
dismissed Henricks’s claim for lack of jurisdiction. See id. at 961-62. Contrary to
Henricks’s contention, McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), does not
compel a different result.
We do not consider Henricks’s claim that his counsel on state direct appeal
was constitutionally ineffective because this claim is raised for the first time on
appeal. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).
AFFIRMED.
2 13-56304