Stephens v. Herrera

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOSE STEPHENS, JR., a/k/a Steve 
M. Stephens,
No. 04-56232
Plaintiff-Appellant,
v.  D.C. No.
CV-03-06190-SHS
AL HERRERA, Warden; UNITED
OPINION
STATES OF AMERICA,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Suzanne H. Segal, Magistrate Judge, Presiding
Submitted February 6, 2006*
Pasadena, California
Filed September 13, 2006
Before: Harry Pregerson, William A. Fletcher, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge William A. Fletcher
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
11279
11282 STEPHENS v. HERRERA
COUNSEL
Mose Stephens, Jr., pro se, Lompoc, California, Gerson
Simon, Los Angeles, California, for the appellant.
Elyssa Getreu, Office of the United States Attorney, Los
Angeles, California, for the appellees.
OPINION
W. FLETCHER, Circuit Judge:
Petitioner-appellant Mose Stephens appeals the district
court’s dismissal of his 28 U.S.C. § 2241 habeas corpus peti-
tion for lack of jurisdiction. Stephens argues that because the
remedy provided by 28 U.S.C. § 2255 is “inadequate or
STEPHENS v. HERRERA 11283
ineffective” to test his claim of “actual innocence” based on
Richardson v. United States, 526 U.S. 813 (1999), the district
court may entertain his § 2241 petition. We conclude that Ste-
phens has not made a sufficient showing of actual innocence
within the meaning of Bousley v. United States, 523 U.S. 614,
623 (1998). We therefore affirm the district court’s dismissal
of Stephens’s § 2241 petition.
I. Background
In 1987, after a jury trial in federal district court in Okla-
homa, Stephens was convicted of (1) conspiring to possess
and distribute heroin and cocaine in violation of 21 U.S.C.
§ 846, (2) conspiring to impede and impair the collection of
federal income taxes in violation of 18 U.S.C. § 371, and (3)
engaging in a continuing criminal enterprise in violation of 21
U.S.C. § 848. Stephens was sentenced to forty years in prison.
In 1988, his conviction was affirmed on direct appeal to the
Tenth Circuit.1
Stephens filed, and attempted to file, numerous motions
under 28 U.S.C. § 2255 in the district court in Oklahoma and
in the Tenth Circuit. On June 3, 1988, while his petition for
a writ of certiorari on direct review was still pending in the
Supreme Court, Stephens filed a motion under 28 U.S.C.
§ 2255 in the district court. The district court denied the
motion as premature. On November 7, 1990, after the
Supreme Court denied certiorari, Stephens filed another
§ 2255 motion. The district court denied the motion, and the
Tenth Circuit affirmed in an unpublished opinion. See United
States v. Stephens, No. 90-5251, 1991 WL 268918 (10th Cir.
Dec. 9, 1991). Stephens filed a third § 2255 motion on March
28, 1994. The district court denied the motion on July 25, and
directed the clerk of court not to file further motions without
1
Stephens’s sentence for his conviction under 21 U.S.C. § 846 was later
vacated and dismissed by the district court on the ground that this convic-
tion was for a lesser included offense under § 848.
11284 STEPHENS v. HERRERA
first obtaining leave of court. Sometime in September 1994
(the docket sheet does not specify the date), Stephens filed an
unsuccessful motion in the Tenth Circuit for leave to file a
second or successive motion. On September 24, 1994, the dis-
trict court denied permission to file another § 2255 motion.
On June 26, 1997, the district court denied an “appeal” that
it characterized as a successive motion under § 2255. On Sep-
tember 21, 2000, Stephens tried to file a § 2255 motion,
which the district court transferred to the Tenth Circuit. On
January 25, 2001, the Tenth Circuit denied authorization to
file the motion.
On August 29, 2003, Stephens filed a petition for habeas
corpus in federal district court in California under 28 U.S.C.
§ 2241. A § 2255 motion must be filed in the district where
the defendant was sentenced. Hernandez v. Campbell, 204
F.3d 861, 864 (9th Cir. 2000) (per curiam). By contrast, a
§ 2241 petition must be filed in the district where the peti-
tioner is in custody. Id. When Stephens filed his § 2241 peti-
tion, he was being held in the United States Penitentiary in
Lompoc, California.
In his § 2241 habeas petition, Stephens alleges “actual
innocence” based on Richardson v. United States, 526 U.S.
813 (1999). He contends the district court has jurisdiction
because a § 2255 motion is “inadequate or ineffective to test
the legality of his detention.” 28 U.S.C. § 2255. The district
court disagreed, dismissing his § 2241 petition for lack of
jurisdiction. For the reasons that follow, we affirm.
II. Standard of Review
We review de novo the district court’s decision to deny a
petition under 28 U.S.C. § 2241. Benny v. U.S. Parole
Comm’n, 295 F.3d 977, 981 (9th Cir. 2002). We also review
de novo whether a district court has jurisdiction over a § 2241
petition. See Lucky v. Calderon, 86 F.3d 923, 925 (9th Cir.
1996).
STEPHENS v. HERRERA 11285
III. Discussion
[1] The general rule is that a motion under 28 U.S.C.
§ 2255 is the exclusive means by which a federal prisoner
may test the legality of his detention, see Ivy v. Pontesso, 328
F.3d 1057, 1059 (9th Cir. 2003) (as amended), and that
restrictions on the availability of a § 2255 motion cannot be
avoided through a petition under 28 U.S.C. § 2241. See
Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per
curiam). The one exception to the general rule is what we
have called the “escape hatch” of § 2255. Lorentsen v. Hood,
223 F.3d 950, 953 (9th Cir. 2000). The escape hatch permits
a federal prisoner to “file a habeas corpus petition pursuant to
§ 2241 to contest the legality of a sentence where his remedy
under § 2255 is ‘inadequate or ineffective to test the legality
of his detention.’ ” Hernandez v. Campbell, 204 F.3d 861,
864-65 (9th Cir. 2000) (per curiam) (quoting § 2255).
[2] As described above, Stephens has filed multiple unsuc-
cessful § 2255 motions in federal district court in Oklahoma.
In order to file another § 2255 motion, he must first obtain
authorization from the court of appeals. See 28 U.S.C.
§ 2244(b)(2) and (3). A court of appeals may authorize a sec-
ond or successive § 2255 motion only if (1) “the claim relies
on a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previ-
ously unavailable,” or (2) “the factual predicate for the claim
could not have been discovered previously through the exer-
cise of due diligence,” and “the facts underlying the claim . . .
would be sufficient to establish by clear and convincing evi-
dence that, but for constitutional error, no reasonable fact-
finder would have found the applicant guilty of the underlying
offense.” Id. § 2244(b)(2).
[3] The claim Stephens seeks to present in his § 2241
motion is that his jury was given an erroneous instruction
under 21 U.S.C. § 848. The instruction given in Stephens’s
case did not require the jury to agree unanimously on the
11286 STEPHENS v. HERRERA
same three acts comprising the “series of violations” neces-
sary to its finding that he had engaged in a “continuing crimi-
nal enterprise” within the meaning of § 848. Several years
after the Tenth Circuit’s 1991 denial of Stephens’s § 2255
motion, the Supreme Court held in Richardson v. United
States, 526 U.S. 813 (1999), that § 848 requires that the jury
unanimously agree on the same three acts that comprise the
“series of violations.” The parties agree that Stephens’s Rich-
ardson claim is a statutory claim that relies neither on a “new
rule of constitutional law” nor on “newly discovered evi-
dence.” A “second or successive” § 2255 motion is therefore
not available to address Stephens’s Richardson claim. See
United States v. Reyes, 358 F.3d 1095 (9th Cir. 2004).
Stephens does not argue that the unavailability of a second
or successive § 2255 motion automatically allows him to
bring a § 2241 petition pursuant to the “escape hatch” of
§ 2255. “[T]he general rule in this circuit is that the ban on
unauthorized second or successive petitions does not per se
make § 2255 ‘inadequate or ineffective.’ ” Lorentsen, 223
F.3d at 953 (quoting § 2255); see also Moore, 185 F.3d at
1055. Rather, Stephens argues that a § 2255 motion is “inade-
quate or ineffective” because he is seeking to present a claim
of “actual innocence.”
[4] Along with many of our sister circuits, we have held
that a § 2241 petition is available under the “escape hatch” of
§ 2255 when a petitioner (1) makes a claim of actual inno-
cence, and (2) has not had an “unobstructed procedural shot”
at presenting that claim. Ivy, 328 F.3d at 1060; see also
Abdullah v. Hedrick, 392 F.3d 957, 960 (8th Cir. 2004);
Reyes-Requena v. United States, 243 F.3d 893, 903 (5th Cir.
2001); In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000);
Wofford v. Scott, 177 F.3d 1236, 1244 & n.3 (11th Cir. 1999);
In re Davenport, 147 F.3d 605, 609-11 (7th Cir. 1998); Triest-
man v. United States, 124 F.3d 361, 363 (2d Cir. 1997); In re
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). We consider
these two requirements in reverse order.
STEPHENS v. HERRERA 11287
[5] Stephens satisfies the requirement of not having had an
“unobstructed procedural shot” at presenting his claim under
Richardson. He was convicted in 1987 of violating 21 U.S.C.
§ 848. The Tenth Circuit denied Stephens’s § 2255 motion in
1991. Richardson was not decided until eight years later.
Because Stephens’s Richardson claim did not become avail-
able until after the Tenth Circuit denied his § 2255 motion,
and because that claim does not satisfy the criteria of § 2244
for a second or successive § 2255 motion, Stephens has not
had (and, indeed, will never get) an opportunity to present his
Richardson claim in a § 2255 motion.
[6] However, Stephens cannot satisfy the actual innocence
requirement. In this circuit, a claim of actual innocence for
purposes of the escape hatch of § 2255 is tested by the stan-
dard articulated by the Supreme Court in Bousley v. United
States, 523 U.S. 614 (1998): “To establish actual innocence,
petitioner must demonstrate that, in light of all the evidence,
it is more likely than not that no reasonable juror would have
convicted him.” Id. at 623 (internal quotation marks omitted);
see also Lorentsen, 323 F.3d at 954 (quoting this passage
from Bousley).
[7] A Richardson claim is not, by itself, a claim of actual
innocence. Rather, it is a claim that the jury has not been told
that § 848 requires unanimous agreement on the three particu-
lar acts comprising the “series of violations.” A jury might
conceivably convict an innocent person of violating § 848
because of an instruction given in violation of Richardson, but
the mere fact of an improper instruction is not sufficient to
meet the test for actual innocence. As the Sixth Circuit wrote
in Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir.
2003), “Richardson does not render defendants who were
convicted of conducting a [continuing criminal enterprise]
‘not guilty,’ or ‘actually innocent,’ merely because the trial
court gave instructions that did not comply with the rule
announced therein[.]”
11288 STEPHENS v. HERRERA
[8] We conclude that while Stephens can show that his jury
was improperly instructed under Richardson, he cannot sat-
isfy the test for actual innocence articulated in Bousley. At
trial, the government presented testimony of two of Ste-
phens’s alleged co-conspirators. One of them, Sam Williams,
testified that Stephens had sold him heroin either eleven or
twelve times. The jury could easily have found that each one
of these sales was an act constituting a “violation.” Stephen
argues that his co-conspirators’ testimony was unreliable
because they were motivated to lie about the supposed sales,
and because there was no evidence that the chemicals sold
were illegal drugs. However, the evidence against Stephens
was sufficiently strong that we cannot conclude that it is more
likely than not that no reasonable juror, properly instructed as
to the elements of the crime, would have found him guilty
under § 848.
Conclusion
[9] Because Stephens has not made out a claim of actual
innocence, we conclude that he has not properly invoked the
“escape hatch” exception of § 2255 that would permit him to
file a petition for habeas corpus under § 2241. We therefore
affirm the district court’s dismissal of his § 2241 petition for
lack of jurisdiction.
AFFIRMED.