Clifton Milton v. J. Shartle

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLIFTON MILTON, No. 18-15874
Petitioner-Appellant, D.C. No. 4:18-cv-00178-RM-BPV
v.
MEMORANDUM*
J. T. SHARTLE, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
Rosemary Márquez, District Judge, Presiding
Submitted September 18, 2019**
Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.
Federal prisoner Clifton Milton appeals pro se from the district court’s
judgment dismissing his 28 U.S.C. § 2241 habeas corpus petition challenging his
conviction and sentence for conspiracy to distribute and possession with intent to
distribute heroin. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo the district court’s dismissal of a section 2241 petition, see Marrero v. Ives,
682 F.3d 1190, 1192 (9th Cir. 2012), and we affirm.
Milton argues that the district court violated Federal Rule of Criminal
Procedure 11 at his sentencing hearing, and that he may proceed with this claim
under 28 U.S.C. § 2241 because the alleged violation resulted in a miscarriage of
justice. This argument fails because Milton has failed to allege or demonstrate that
he is actually innocent for purposes of the “escape hatch” of 28 U.S.C. § 2255(e).
See Ives, 682 F.3d at 1195. Accordingly, the district court properly dismissed
Milton’s petition for lack of jurisdiction. See Harrison v. Ollison, 519 F.3d 952,
961-62 (9th Cir. 2008). Moreover, contrary to Milton’s contention, no evidentiary
hearing was required in the district court because the record conclusively shows
that Milton is not entitled to relief under section 2241. See Anderson v. United
States, 898 F.2d 751, 753 (9th Cir. 1990).
AFFIRMED.
2 18-15874