Cheese v. United States

302 F. App'x 658

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 2, 2008
• Docket: No. 06-55701
• Status: Published

Opinion

MEMORANDUM

**

Michael Anthony Cheese, a federal prisoner, appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2241 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Cheese contends that he is actually innocent because the trial court failed to properly instruct the jury on the essential elements of the offense. However, the factual and legal bases for this claim were available at the time of Cheese’s first § 2255 motion. Accordingly, he has not been denied an unobstructed procedural opportunity to present the claim, and he therefore did not satisfy the criteria for filing his petition under § 2241 pursuant to the “escape hatch” of § 2255. See Stephens v. Herrera, 464 F.3d 895, 897-98 (9th Cir.2006); Ivy v. Pontesso, 328 F.3d 1057, 1060-61 (9th Cir.2003). We conclude that the district court was correct in rejecting Cheese’s § 2241 petition and dismissing his challenges to his conviction and sentence for lack of jurisdiction. See Harrison v. Ollison, 519 F.3d 952, 961-62 (9th Cir.2008).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.