1 O 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9
10 BYRON NEAL, ) Case No. 2:23-cv-02921-CAS (PVC) 11 ) ) 12 Plaintiff, ) ORDER APPROVING FINDINGS ) ) AND RECOMMENDATIONS OF 13 v. ) UNITED STATES MAGISTRATE ) 14 JUDGE ) J. ENGLMAN, Warden, ) 15 ) ) 16 Defendant. ) ) 17 18 19 I. INTRODUCTION 20 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of 21 Habeas Corpus (dkt. 1, the “Petition”), all of the records herein, the Report and 22 Recommendation of United States Magistrate Judge (dkt. 14, the “Report”), and 23 Petitioner’s Response to the Magistrate Judge’s Report and Recommendation (dkt. 24 17, the “Response”). Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 25 72(b), the Court has conducted a de novo review of those portions of the Report to 26 which objections have been stated. Having completed its review, the Court accepts 27 the findings and recommendations set forth in the Report. 1 II. BACKGROUND 2 In December 2007, a federal grand jury in the Eastern District of Louisiana 3 returned a three-count indictment charging petitioner for violations of the Federal 4 Controlled Substances Act. See United States v. Neal, No. CRIM.A. 07-425, 2015 5 WL 967552, at *1 (E.D. La. Mar. 4, 2015). In February 2009, a federal grand jury 6 returned a superseding indictment, charging petitioner with two additional counts 7 for conspiring to murder and tampering with a witness or informant (Counts Four 8 and Five). See id. In July 2011, Petitioner pleaded guilty to all charges contained 9 in the superseding indictment. See id. at *2. The next day, Petitioner moved to 10 withdraw his guilty pleas, which the court denied. The Court sentenced petitioner 11 to 360 months in the Bureau of Prisons (BOP). See id. On appeal, the Fifth 12 Circuit vacated Petitioner’s convictions on Counts Four and Five and remanded for 13 re-pleading with respect to those two counts. See id. On remand, the district court 14 granted the Government’s motion to dismiss those counts. See id. at *2 n.1. 15 In October 2014, Petitioner filed his original § 2255 motion in the Eastern 16 District of Louisiana, which was denied with prejudice in March 2015. Petition at 17 4; 2 see Neal, 2015 WL 967552, at *7. In 2016, Petitioner filed a second § 2255 18 motion in the Eastern District of Louisiana, arguing that his career offender status 19 was unconstitutional in light of Johnson v. United States, 576 U.S. 592 (2015). 20 See Motion at 5. The district court denied the motion, noting that “Defendant was 21 not sentenced pursuant to the Armed Career Criminal Act, let alone the residual 22 clause of the former 18 U.S.C. § 924(d) at issue in Johnson.” See id. 23 Petitioner, now being housed at FCI Terminal Island in San Pedro, 24 California, filed the instant Petition for writ of habeas corpus pursuant to 28 U.S.C. 25 § 2255 on April 17, 2023. 26 /// 27 /// 1 III. LEGAL STANDARD 2 “[I]n order to determine whether jurisdiction is proper, a court must first 3 determine whether a habeas petition is filed pursuant to § 2241 or § 2255 before 4 proceeding to any other issue.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th 5 Cir. 2000). If the Petition falls under § 2255, it must be brought in the jurisdiction 6 of the sentencing court, which here is the United States District Court for the 7 Eastern District of Louisiana. See id. (“§ 2255 motions must be heard in the 8 sentencing court”). However, if the Petition falls under § 2241, it must be filed in 9 the custodial jurisdiction, which is the Central District of California. See id. (“a 10 habeas petition filed pursuant to § 2241 must be heard in the custodial court”). 11 “Section 2255 allows a federal prisoner claiming that his sentence was 12 imposed ‘in violation of the Constitution or laws of the United States’ to ‘move the 13 court which imposed the sentence to vacate, set aside or correct the sentence.’” 14 Harrison v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008) (quoting 28 U.S.C. 15 § 2255(a)). “The general rule is that a motion under 28 U.S.C. § 2255 is the 16 exclusive means by which a federal prisoner may test the legality of his detention 17 and that restrictions on the availability of a § 2255 motion cannot be avoided 18 through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464 F.3d 895, 19 897 (9th Cir. 2006) (citations omitted); see Lorentsen v. Hood, 223 F.3d 950, 953 20 (9th Cir. 2000) (“In general, § 2255 provides the exclusive procedural mechanism 21 by which a federal prisoner may test the legality of detention.”); see also Jones v. 22 Hendrix, 143 S. Ct. 1857, 1869 (2023) (“Section 2255 owes its existence to 23 Congress’ pragmatic judgment that the sentencing court, not the District Court for 24 the district of confinement, is the best venue for a federal prisoner's collateral 25 attack on his sentence.”). 26 On the other hand, a habeas corpus petition under § 2241 is the appropriate 27 vehicle by which a federal prisoner challenges the manner, location, or conditions 1 of the execution of his sentence. Hernandez, 204 F.3d at 864. Accordingly, “[a] 2 federal prisoner authorized to seek relief under section 2255 may not petition for 3 habeas corpus relief pursuant to section 2241 if it appears the applicant has failed 4 to apply for relief, by motion, to the court which sentenced him, or that such court 5 has denied him relief, unless it also appears that the remedy by motion is 6 inadequate or ineffective to test the legality of his detention.” United States v. 7 Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (emphasis added). 8 As noted above, the savings clause of § 2255(e) provides that “a federal 9 prisoner may file a habeas corpus petition pursuant to § 2241 to contest the legality 10 of a sentence where his remedy under § 2255 is inadequate or ineffective to test the 11 legality of his detention.” Hernandez, 204 F.3d at 864–65 (citation omitted); see 12 28 U.S.C. § 2255(e) (stating that an application for a writ of habeas corpus by a 13 prisoner in federal custody must be presented to the sentencing court as a motion 14 under § 2255 “unless it also appears that the remedy by motion is inadequate or 15 ineffective to test the legality of his detention”). The Ninth Circuit has explained 16 that a remedy qualifies as inadequate or ineffective for purposes of § 2255 only 17 when a petitioner “(1) makes a claim of actual innocence, and (2) has not had an 18 unobstructed procedural shot at presenting that claim.” Stephens, 464 F.3d at 898 19 (citation omitted); accord Allen v.
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1 O 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9
10 BYRON NEAL, ) Case No. 2:23-cv-02921-CAS (PVC) 11 ) ) 12 Plaintiff, ) ORDER APPROVING FINDINGS ) ) AND RECOMMENDATIONS OF 13 v. ) UNITED STATES MAGISTRATE ) 14 JUDGE ) J. ENGLMAN, Warden, ) 15 ) ) 16 Defendant. ) ) 17 18 19 I. INTRODUCTION 20 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of 21 Habeas Corpus (dkt. 1, the “Petition”), all of the records herein, the Report and 22 Recommendation of United States Magistrate Judge (dkt. 14, the “Report”), and 23 Petitioner’s Response to the Magistrate Judge’s Report and Recommendation (dkt. 24 17, the “Response”). Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 25 72(b), the Court has conducted a de novo review of those portions of the Report to 26 which objections have been stated. Having completed its review, the Court accepts 27 the findings and recommendations set forth in the Report. 1 II. BACKGROUND 2 In December 2007, a federal grand jury in the Eastern District of Louisiana 3 returned a three-count indictment charging petitioner for violations of the Federal 4 Controlled Substances Act. See United States v. Neal, No. CRIM.A. 07-425, 2015 5 WL 967552, at *1 (E.D. La. Mar. 4, 2015). In February 2009, a federal grand jury 6 returned a superseding indictment, charging petitioner with two additional counts 7 for conspiring to murder and tampering with a witness or informant (Counts Four 8 and Five). See id. In July 2011, Petitioner pleaded guilty to all charges contained 9 in the superseding indictment. See id. at *2. The next day, Petitioner moved to 10 withdraw his guilty pleas, which the court denied. The Court sentenced petitioner 11 to 360 months in the Bureau of Prisons (BOP). See id. On appeal, the Fifth 12 Circuit vacated Petitioner’s convictions on Counts Four and Five and remanded for 13 re-pleading with respect to those two counts. See id. On remand, the district court 14 granted the Government’s motion to dismiss those counts. See id. at *2 n.1. 15 In October 2014, Petitioner filed his original § 2255 motion in the Eastern 16 District of Louisiana, which was denied with prejudice in March 2015. Petition at 17 4; 2 see Neal, 2015 WL 967552, at *7. In 2016, Petitioner filed a second § 2255 18 motion in the Eastern District of Louisiana, arguing that his career offender status 19 was unconstitutional in light of Johnson v. United States, 576 U.S. 592 (2015). 20 See Motion at 5. The district court denied the motion, noting that “Defendant was 21 not sentenced pursuant to the Armed Career Criminal Act, let alone the residual 22 clause of the former 18 U.S.C. § 924(d) at issue in Johnson.” See id. 23 Petitioner, now being housed at FCI Terminal Island in San Pedro, 24 California, filed the instant Petition for writ of habeas corpus pursuant to 28 U.S.C. 25 § 2255 on April 17, 2023. 26 /// 27 /// 1 III. LEGAL STANDARD 2 “[I]n order to determine whether jurisdiction is proper, a court must first 3 determine whether a habeas petition is filed pursuant to § 2241 or § 2255 before 4 proceeding to any other issue.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th 5 Cir. 2000). If the Petition falls under § 2255, it must be brought in the jurisdiction 6 of the sentencing court, which here is the United States District Court for the 7 Eastern District of Louisiana. See id. (“§ 2255 motions must be heard in the 8 sentencing court”). However, if the Petition falls under § 2241, it must be filed in 9 the custodial jurisdiction, which is the Central District of California. See id. (“a 10 habeas petition filed pursuant to § 2241 must be heard in the custodial court”). 11 “Section 2255 allows a federal prisoner claiming that his sentence was 12 imposed ‘in violation of the Constitution or laws of the United States’ to ‘move the 13 court which imposed the sentence to vacate, set aside or correct the sentence.’” 14 Harrison v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008) (quoting 28 U.S.C. 15 § 2255(a)). “The general rule is that a motion under 28 U.S.C. § 2255 is the 16 exclusive means by which a federal prisoner may test the legality of his detention 17 and that restrictions on the availability of a § 2255 motion cannot be avoided 18 through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464 F.3d 895, 19 897 (9th Cir. 2006) (citations omitted); see Lorentsen v. Hood, 223 F.3d 950, 953 20 (9th Cir. 2000) (“In general, § 2255 provides the exclusive procedural mechanism 21 by which a federal prisoner may test the legality of detention.”); see also Jones v. 22 Hendrix, 143 S. Ct. 1857, 1869 (2023) (“Section 2255 owes its existence to 23 Congress’ pragmatic judgment that the sentencing court, not the District Court for 24 the district of confinement, is the best venue for a federal prisoner's collateral 25 attack on his sentence.”). 26 On the other hand, a habeas corpus petition under § 2241 is the appropriate 27 vehicle by which a federal prisoner challenges the manner, location, or conditions 1 of the execution of his sentence. Hernandez, 204 F.3d at 864. Accordingly, “[a] 2 federal prisoner authorized to seek relief under section 2255 may not petition for 3 habeas corpus relief pursuant to section 2241 if it appears the applicant has failed 4 to apply for relief, by motion, to the court which sentenced him, or that such court 5 has denied him relief, unless it also appears that the remedy by motion is 6 inadequate or ineffective to test the legality of his detention.” United States v. 7 Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (emphasis added). 8 As noted above, the savings clause of § 2255(e) provides that “a federal 9 prisoner may file a habeas corpus petition pursuant to § 2241 to contest the legality 10 of a sentence where his remedy under § 2255 is inadequate or ineffective to test the 11 legality of his detention.” Hernandez, 204 F.3d at 864–65 (citation omitted); see 12 28 U.S.C. § 2255(e) (stating that an application for a writ of habeas corpus by a 13 prisoner in federal custody must be presented to the sentencing court as a motion 14 under § 2255 “unless it also appears that the remedy by motion is inadequate or 15 ineffective to test the legality of his detention”). The Ninth Circuit has explained 16 that a remedy qualifies as inadequate or ineffective for purposes of § 2255 only 17 when a petitioner “(1) makes a claim of actual innocence, and (2) has not had an 18 unobstructed procedural shot at presenting that claim.” Stephens, 464 F.3d at 898 19 (citation omitted); accord Allen v. Ives, 950 F.3d 1184, 1188 (9th Cir. 2020). A 20 petitioner “must satisfy both of those requirements” to get through § 2255’s 21 “escape hatch” and be allowed to file a § 2241 petition in the custodial court. 22 Muth v. Fondren, 676 F.3d 815, 819 (9th Cir. 2012); accord Marquez-Huazo v. 23 Warden, FCI-Herlong, No. 22-15787, 2023 WL 2203560, at *1 (9th Cir. Feb. 24, 24 2023). In the context of a § 2255(e) claim, “‘actual innocence’ means factual 25 innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 26 623 (1998); accord Muth, 6765 F.3d at 819; see generally Gandarela v. Johnson, 27 286 F.3d 1080, 1085 (9th Cir. 2002) (Petitioner must demonstrate that he “is 1 innocent of the charge for which he is incarcerated, as opposed to legal innocence 2 as a result of legal error.”) (citation omitted). 3 IV. DISCUSSION 4 As previously discussed, in order for a custodial court to hear a § 2241 claim 5 via § 2255(e)’s “escape hatch,” the petitioner must show that (1) he has a claim of 6 “actual innocence” as to the challenged conviction; and (2) he has not had an 7 “unobstructed procedural shot at presenting that claim.” Stephens, 464 F.3d at 898 8 (citation omitted). 9 Petitioner brings the instant § 2241 petition, arguing that his sentence is 10 “unconstitutional because he is actually innocent of the conspiracy or solicitation 11 to [commit] murder offense[s] [that] the court used to calculate his sentence 12 guidelines range.” Petition at 2. Specifically, he argues that the actual innocence 13 prong is satisfied because Counts 4 and 5 of his superseding indictment were 14 dismissed after his sentencing. Thus, he contends that these counts were 15 improperly used to determine his sentence under the sentencing guidelines. 16 The magistrate judge found that “the Petition must be construed as a § 2255 17 motion, not as a habeas petition under § 2241,” because “the § 2255 escape hatch 18 does not apply.” Report at 6. He specifically found that: (1) petitioner did not 19 explain what “unobstructed procedural shot” prevented him from making his actual 20 innocence claim on either direct appeal or in his initial § 2255 motion; and (2) 21 petitioner has not raised a viable actual innocence claim. Id. The magistrate judge 22 subsequently dismissed the Petition for lack of jurisdiction because petitioner had 23 “already filed a [prior] § 2255 motion” and did not seek or obtain permission from 24 to file the instant § 2255 motion. Id. at 6-7. He also declined to transfer the 25 petition because petitioner’s claims “appear to be time-barred and, thus, 26 transfer . . . would be futile.” Id. at 7. 27 1 Petitioner objects that: (1) the Petition falls under the savings clause of 2 § 2255(e); (2) there is ambiguity as to where a § 2255 petition must be filed when a 3 petitioner is no longer incarcerated in the district of conviction; (3) dismissal is 4 unnecessarily punitive when transfer is available; and (4) denial of a petition 5 “based on a technical jurisdictional issue [] contradict[s] the spirit of the statute.” 6 Response at 3-7. 7 The Court agrees with the magistrate judge’s findings. As a threshold 8 matter, it appears that the Petition does not fall within the § 2255 “escape hatch” 9 and must therefore be construed as a § 2255 petition. The Ninth Circuit has held 10 that, in order to satisfy the “unobstructed procedural shot” prong, the petitioner 11 “must never have had the opportunity to raise [the claim] by motion.” Ivy v. 12 Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003). Here, petitioner has “not 13 explain[ed] what ‘unobstructed procedural shot’ prevented him from making his 14 actual innocence claim on either direct appeal or in his initial § 2255 motion” filed 15 in the Eastern District of Louisiana in October 2014. Report at 5; see also Neal, 16 2015 WL 967552, at *7. By way of objection, petitioner argues that “[n]ew 17 evidence or legal decisions might have emerged after the petitioner’s initial § 2255 18 motion, which could justify revisiting the case.” Response at 5 (emphasis added). 19 However, petitioner has not cited any specific evidence or legal decisions to 20 support his objection.1 21 Because the Petition is properly construed as a § 2255 petition, the 22 magistrate judge correctly found that it must be denied as successive. “A 23 petitioner is generally limited to one motion under § 2255[ ] and may not bring a 24 25 1 Because the Court finds that Petitioner has failed to meet the “unobstructed 26 procedural shot” prong, it does not address whether Petitioner has met the “actual 27 innocence” prong. Id. 1 ‘second or successive motion’ unless it meets the exacting standards of 28 U.S.C. 2 § 2255(h).” United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011). “A 3 prisoner may not bring a second or successive § 2255 motion in district court 4 unless ‘a panel of the appropriate court of appeals’ certifies that the motion 5 contains: ‘(1) newly discovered evidence that, if proven and viewed in light of the 6 evidence as a whole, would be sufficient to establish by clear and convincing 7 evidence that no reasonable factfinder would have found the movant guilty of the 8 offense; or (2) a new rule of constitutional law, made retroactive to cases on 9 collateral review by the Supreme Court, that was previously unavailable.’” 10 Harrison v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008) (quoting 28 U.S.C. 11 § 2255(h)). Here, petitioner “has already filed a § 2255 motion” and “[t]he record 12 does not reflect that [p]etitioner sought or obtained permission from the Fifth 13 Circuit to file this instant § 2255 motion.” Report at 7. 14 As the magistrate judge observed, when a successive § 2255 claim is filed 15 without the required authorization from the relevant court of appeals, the district 16 court may either dismiss the petition or transfer the matter to the relevant court of 17 appeals if the district court determines it is in the interest of justice to do so under 18 28 U.S.C. § 1631. Report at 7 (citing In re Cline, 531 F.3d 1249, 1252 (10th Cir. 19 2008)). The Court adopts the magistrate judge’s finding that transfer would not be 20 in the interest of justice because petitioner’s claims appear to be time-barred. See 21 id. It appears that Petitioner’s conviction became final on October 7, 2013, and the 22 relevant statute of limitations therefore expired on October 7, 2014. See id. at 7-8 23 n.4. Accordingly, the Petition must be dismissed. 24 V. CONCLUSION 25 Having completed its review, the Court accepts the findings and 26 recommendations set forth in the Report. Accordingly, IT IS ORDERED that: 27 1 || (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this 2 ||action. The Court DENIES petitioner’s request for a certificate of appealability. 3 4 || Dated: August 9, 2024 hue ius ff by de ° CHRISTINA A.SNYDER > 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27