Nelson v. Trate

1

CECIL DEWITT NELSON, Petitioner, v. B.M. TRATE, Respondent.

No. 1:23-cv-00882-SKO (HC)

United States District Court, E.D. California

June 14, 2023

ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE

FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

[21-DAY OBJECTION DEADLINE]

SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He is in the custody of the Bureau of Prisons at the United States Penitentiary in Atwater, California. He filed the instant federal petition on June 9, 2023, challenging his conviction and sentence. Because the petition is successive, and the Court lacks jurisdiction to consider the claims, the Court will recommend that the instant petition be DISMISSED.

BACKGROUND

On February 21, 2019, Petitioner filed a petition for writ of habeas corpus in this Court in Nelson v. Lake, Case No. 1:19-cv-00249-LJO-SKO. The petition was dismissed for lack of jurisdiction, because Petitioner failed to satisfy the savings clause in 28 U.S.C. § 2255 which would permit him to challenge his conviction by way of § 2241. On October 21, 2019, Petitioner filed a subsequent habeas petition in this Court in Nelson v. Lake, Case No 1:19-cv-01487-DAD-SKO. The petition was dismissed for the same reasons. On December 15, 2020, Petitioner filed another habeas petition in this Court in Nelson v. Ciolli, Case No. 1:20-cv-01769-DAD-SKO. The petition was again dismissed for the same reasons. On May 23, 2022, Petitioner filed a fourth habeas petition in this Court in Case No. 1:22-cv-00617-AWI-CDB. Again, the petition was dismissed for the same reasons.

On June 9, 2023, Petitioner filed the instant petition. Petitioner again claims that his plea agreement was infirm, and that he received ineffective assistance of counsel.

DISCUSSION

I Successive Petition

Claims raised by a state prisoner in a second or successive § 2254 petition that were previously presented in a prior application must be dismissed. 28 U.S.C. § 2244(b)(1). This is an absolute bar against raising in a second or successive habeas corpus application a claim that was presented in a prior application. Graham v. Johnson, 168 F.3d 762, 789 (5th Cir. 1999). In this case, Petitioner is a federal prisoner. The Supreme Court has yet to decide whether the second or successive restrictions applicable to federal prisoners (§ 2255(h)) should be interpreted in the same manner as those applicable to state prisoners (§ 2244(b)). Gonzalez v. Crosby, 545 U.S. 524 530 n.3 (2005) (although § 2255 “is similar to, and refers to, the statutory subsection applicable to second or successive section 2244 petitions, it is not identical”).

28 U.S.C. § 2255(h)(2) provides: “Before a second or successive application may be filed in the district court, the court of appeals must certify that it relies on ‘[1] a new rule, [2] of constitutional law, [3] made retroactive to cases on collateral review by the Supreme Court, [4] that was previously unavailable.'” Garcia v. United States, 923 F.3d 1242, 1244 (9th Cir. 2019) (quoting 28 U.S.C. § 2255(h)(2)). However, it is not the district court that decides whether a second or successive petition meets these requirements. Section 2244(b)(3)(A) provides: “Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” In other words, Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave to file the petition because a district court lacks subject-matter jurisdiction over a second or successive petition. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). In this case, Petitioner makes no showing that he sought and received authorization from the Ninth Circuit to file a successive petition.

Moreover, Petitioner's claims do not rely on a new law made retroactive to cases on collateral review that was previously unavailable. He contends that conspiracy to kidnap did not qualify as a crime of violence for purposes of 18 U.S.C. § 924(c); however, as he was not convicted of violating § 924(c), his arguments are groundless. See United States v. Dade, 6 F.4th 1013, 1021 (9th Cir. 2021) (holding that because the petitioner's conviction did not rest on § 924(c)'s residual clause, his second or successive § 2255 motion did “not meet the gatekeeping requirement” of reliance on a new rule of constitutional law).

II. Jurisdiction

A federal prisoner who wishes to challenge the validity or constitutionality of his federal conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007). In such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. Generally, a prisoner may not collaterally attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980).

In contrast, a prisoner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district where the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir.2000) (per curiam). “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, and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” Stephens, 464 F.3d at 897 (citations omitted).

An exception exists by which a federal prisoner may seek relief under § 2241 if he can demonstrate the remedy available under § 2255 to be "inadequate or ineffective to test the validity of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting 28 U.S.C. § 2255); see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a very narrow exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.2003). The remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or because a remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court's denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition inadequate).

The Ninth Circuit has held that Section 2255 provides an ‘inadequate and ineffective' remedy (and thus that the petitioner may proceed under Section 2241) when the petitioner: (1) makes a claim of actual innocence; and, (2) has never had an ‘unobstructed procedural shot' at presenting the claim. Stephens, 464 F.3d at 898. The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir.1963).

Here, Petitioner is challenging the validity and constitutionality of his conviction and sentence as imposed by the United States District Court for the Southern District of Georgia, rather than an error in the administration of his sentence. Therefore, the appropriate procedure would be to file a motion pursuant to § 2255 in the Southern District of Georgia, not a habeas petition pursuant to § 2241 in this Court. Petitioner was made known of this fact in his prior habeas proceedings in this Court, which were dismissed for lack of habeas jurisdiction. The procedural background of the underlying conviction was set forth in the previous action as follows:

On January 30, 2013, Petitioner pled guilty to one count of conspiracy to kidnap (18 U.S.C. § 1201(c)) in the United States District Court for the Southern District of Georgia. See United States v. Murray, Case No 6:12-cr-00005-JRH-CLR (S.D. Ga.).^[1]The district court sentenced Petitioner to a term of life imprisonment. Id.

On March 27, 2013, Petitioner appealed to the Eleventh Circuit Court of Appeals. Id. (Doc. 171.) On January 22, 2014, the appellate court affirmed the judgment. Id. (Doc. 196.) On February 26, 2015, Petitioner filed a motion to vacate judgment pursuant to 28 U.S.C. § 2255. Id. (Doc. 199.) The trial court denied the § 2255 motion on August 10, 2015. Id. (Doc. 217.) Petitioner appealed to the Eleventh Circuit on August 24, 2015, and the appeal was denied on December 30, 2015. Id. (Docs. 223, 232.) Petitioner filed a motion for reconsideration with the Eleventh Circuit, and the appellate court denied the motion on March 1, 2016. Id. (Docs. 232, 240.) On December 5, 2017, Petitioner filed a motion for emergency relief from a void judgment in the trial court. Id. (Doc. 280.) On July 12, 2018, the district court construed the motion as a § 2255 motion and denied it as an unauthorized successive motion. Id. (Doc. 289.) Petitioner appealed, and on February 21, 2019, the Eleventh Circuit dismissed the appeal. Id. (Docs. 290, 297, 298.) Petitioner then filed a motion for writ of mandamus in the sentencing court, and the

...