Chelberg v. FBOP Director

Opinion

1 2 3 4 5 6 7 10 11 Civ. Case No. 3:19-cv-0748-BTM TRAVIS CHELBERG, Crim. Case No. 3:09-cr-0365-BTM 12 Petitioner, 13 ORDER DISMISSING HABEAS v. PETITION AS AMENDED BY 14 SUBSEQUENT FILINGS, 15 FBOP DIRECTOR, GRANTING MOTION TO DISMISS, DENYING REQUEST FOR 16 Respondent. APPOINTMENT OF COUNSEL, REQUEST FOR EXTENSION 18

19 [Civ. Case, ECF Nos. 1, 15, 20, 22, 24, 26; Crim. Case, ECF Nos. 248, 20 255] 21 Before the Court is Petitioner Travis Chelberg’s pro se Petition for Writ of 22 Habeas Corpus under 28 U.S.C. § 2241. (Civ. Case, ECF No. 1.) Petitioner is 23 currently incarcerated at Coleman Federal Correction Complex in Sumterville, 24 Florida. On December 3, 2010, Petitioner pled guilty to one count of assault with 25 the intent to commit a felony (witness tampering) in violation of 18 U.S.C. § 26 113(a)(2) and 7 and one count of felon in possession of a firearm in violation of 18 27 U.S.C. § 922(g)(1) and 924(a)(2) pursuant to a written plea agreement. (Crim. 28 1 Case, ECF Nos. 127, 129, 130.) The plea agreement stated that Petitioner 2 qualified for a career offender enhancement under U.S.S.G. § 4B1.1. (Crim Case, 3 ECF No. 129, at 8.) Further, as part of the plea agreement, Petitioner waived any 4 right to appeal or to collaterally attack his conviction or sentence. (Id.) On 5 February 24, 2012, the Court sentenced Petitioner to a term of 168 months in 6 accordance with the joint recommendation of the parties after classifying Petitioner 7 as a career offender. (Crim. Case, ECF Nos. 169, 173.) Petitioner did not directly 8 appeal the conviction or sentence. 9 On February 25, 2013, Petitioner filed a motion for post-conviction relief 10 under 28 U.S.C. § 2255. (Crim. Case, ECF No. 181.) In his § 2255 motion, 11 Petitioner argued that one of his predicate prior felony convictions could not 12 properly be counted when applying the career offender sentencing enhancement 13 and therefore argued that the attorney who negotiated the plea agreement and 14 represented him at the sentencing hearing provided ineffective assistance of 15 counsel by advising Petitioner to admit career offender status. This Court denied 16 the § 2255 motion and granted a certificate of appealability as to that issue. (Crim. 17 Case, ECF No. 197.) On appeal, the Ninth Circuit affirmed the denial of Petitioner’s 18 § 2255 motion. (Crim. Case, ECF No. 230.) 19 On April 22, 2019, Petitioner filed his instant petition for post-conviction relief 20 under 28 U.S.C. § 2241 in this Court. (Civ. Case, ECF No. 1.) In his petition, 21 Petitioner again argues that the career offender enhancement was improperly 22 applied at sentencing, but now argues that his instant offense of conviction under 23 18 U.S.C. § 113(a)(2) does not qualify as a “crime of violence” for purposes of 24 U.S.S.G. § 4B1.1 in light of the Ninth Circuit’s decision in United States v. 25 Dominguez-Maroyoqui, 748 F.3d 918 (9th Cir. 2014). (Id. at 4-5.) The 26 Government filed a motion to dismiss the petition for lack of jurisdiction. (Civ. 27 Case, ECF No. 15.) Petitioner subsequently filed numerous requests to amend 28 his petition, supplemental briefing in support of his petition, and responses in 1 opposition to the Government’s motion to dismiss. (Civ. Case, ECF No. 18, 20, 2 22, 24, 26; Crim. Case, ECF No. 248.) In such filings, Petitioner raises additional 3 challenges to the validity of his detention, including that the Court improperly 4 concluded that Petitioner had at least two predicate prior felony convictions of 5 either a crime of violence or a controlled substance offense for the purposes of 6 U.S.S.G. § 4B1.1 because: (i) one such conviction was insufficiently serious and/or 7 too old to be considered; and (ii) the Court improperly relied upon either insufficient 8 or altered documents in determining that Petitioner had in fact been convicted of 9 such prior felonies. (Civ. Case, ECF No. 22, at 3; Crim. Case, ECF No. 248, at 2.) 10 Petitioner has also requested that counsel be appointed to represent his interests 11 in this proceeding. (Crim. Case, ECF No. 248; see also Civ. Case, ECF Nos. 4 12 (Petitioner’s initial request for appointment of counsel); 6 (Order denying 13 Petitioner’s initial request).) Additionally, Petitioner filed a motion ostensibly 14 requesting relief under Federal Rule of Criminal Procedure 36, but which is more 15 properly considered as an amendment or supplemental briefing to his instant 16 habeas petition because it seeks to attack the validity of the Court’s determination 17 that he qualified as a career offender under U.S.S.G § 4B1.1 based upon purported 18 alterations or other infirmities in the records relied upon by the Court at 19 sentencing.1 (Crim Case, ECF No. 255.) 20

21 1 Regardless of the label used by a habeas petitioner, a filing that “seeks to present 22 newly discovered evidence, seeks to add a new ground for relief, attacks the 23 resolution of a claim on the merits, or seeks to vacate the judgment because of a subsequent change in substantive law” should be considered and subjected to the 24 same standards as his habeas petition. See Rishor v. Ferguson, 822 F.3d 482, 25 491 (9th Cir. 2016) (citing Gonzalez v. Crosby, 545 U.S. 524, 530-31 (2005)); Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004) (“Prisoners cannot avoid 26 the [Antiterrorism and Effective Death Penalty Act of 1996’s] rules by inventive 27 captioning. Any motion filed in the district court that imposed the sentence, and substantively within the scope of § 2255 ¶ 1, is a motion under § 2255, no matter 28 1 “The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive 2 means by which a federal prisoner may test the legality of his detention, and that 3 restrictions on the availability of a § 2255 motion cannot be avoided through a 4 petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 5 2006) (citations omitted). Federal prisoners may not file a second or successive § 6 2255 motion until: (1) the prisoner moves in the appropriate court of appeals for an 7 order authorizing the sentencing court to consider the second or successive 8 motion; and (2) the appropriate court of appeals grants such application. United 9 States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011) (citing 28 U.S.C. § 10 2244(b)(3)(A); 28 U.S.C. § 2255(h)); see also Rules Governing Section 2255 11 Proceedings for the United States District Courts, Rule 9; 9th Cir. R. 22-3(a). 12 Nevertheless, a federal prisoner may seek relief under § 2241 if he can 13 demonstrate the remedy available under § 2255 is “inadequate or ineffective to 14 test the validity of his detention.” 28 U.S.C. § 2255(e); Alaimalo v. United States, 15 645 F.3d 1042, 1046-47 (9th Cir. 2011). “This is called the ‘savings clause’ or 16 17 18 prisoner in custody under sentence of a court established by Act of Congress 19 claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was 20 without jurisdiction to impose such sentence, or that the sentence was in excess 21 of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the 22 sentence.”). “In contrast, a . . . motion that attacks, not the substance of the federal 23 court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings, should not be construed as a second or successive 24 habeas petition.” Rishor, 822 F.3d at 491 (internal quotations omitted) (citing 25 Gonzalez, 545 U.S. at 532); see also Gonzalez, 545 U.S. 524, 532, 125 S. Ct. 2641, 2648, 162 L. Ed. 2d 480 (2005) (“Fraud on the federal habeas court is one 26 example of such a defect” in the integrity of the federal habeas proceedings, but 27 “an attack based on the movant's own conduct, or his habeas counsel's omissions ordinarily does not go to the integrity of the proceedings, but in effect asks for a 28 1 ‘escape hatch’ of § 2255.” Alaimalo, 645 F.3d at 1047. “A [§ 2241] petition meets 2 the escape hatch criteria where a petitioner (1) makes a claim of actual innocence, 3 and (2) has not had an unobstructed procedural shot at presenting that claim.” Id. 4 (internal quotations and citations omitted). 5 “In this circuit, a claim of actual innocence for purposes of the escape hatch 6 of § 2255 is tested by the standard articulated by the Supreme Court in Bousley v. 7 United States, 523 U.S. 614, 623 . . . (1998).” Marrero v. Ives, 682 F.3d 1190, 8 1193 (9th Cir. 2012) (internal quotations and citations omitted). Under that 9 standard, “‘[a]ctual innocence’ means factual innocence, not mere legal 10 insufficiency.” Id. (quoting Bousley, 523 U.S. at 623). The Ninth Circuit has 11 concluded that “the purely legal argument that a petitioner was wrongly classified 12 as a career offender under the Sentencing Guidelines is not cognizable as a claim 13 of actual innocence under the escape hatch.” Marrero v. Ives, 682 F.3d 1190, 14 1195 (9th Cir. 2012). All of Petitioner’s present arguments regarding relevant 15 changes in the law relate to the purely legal issue of whether his instant offense of 16 conviction and predicate prior felony conviction no longer constitute crimes of 17 violence for the purposes of the career offender enhancement under U.S.S.G. § 18 4B1.1. (See, e.g., Civ. Case, ECF No. 24, at 2-3 (citing Johnson v. United States, 19 ___ U.S. ___, 135 S. Ct. 2551 (2015); Dominguez-Maroyoqui, 748 F. 3d 918); Civ. 20 Case, ECF No. 26 (citing Sessions v. Dimaya, ___ U.S. ___, 138 S. Ct. 1204 21 (2018)).) Accordingly, these arguments fail to satisfy the “actual innocence” 22 criterion of the § 2255 escape hatch. See Marrero, 682 F.3d at 1195. 23 As to Petitioner’s remaining argument, even assuming arguendo that he has 24 demonstrated actual innocence, he has failed to demonstrate that he has not had 25 an unobstructed procedural shot at presenting those claims. “In determining 26 whether a petitioner had an unobstructed procedural shot to pursue his claim, 27 . . . . we consider: (1) whether the legal basis for [the] petitioner's claim did not 28 arise until after he had exhausted his direct appeal and first § 2255 motion; and (2) 1 whether the law changed in any way relevant to [the] petitioner's claim after that 2 first § 2255 motion.” Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (internal 3 quotations and citations omitted)). Here, Petitioner has set forth no credible facts 4 demonstrating that he was unaware of, or could not have discovered through the 5 exercise of due diligence, the facts supporting his remaining claims at the time he 6 pursued his original § 2255 motion. Further, other than the previously-identified 7 purely legal arguments concerning whether he was properly classified as a career 8 offender under the Sentencing Guidelines, Petitioner has failed to demonstrate any 9 relevant change in the law that occurred after he exhausted his first § 2255 motion. 10 As such, Petitioner could have raised his remaining arguments on direct appeal or 11 in his first § 2255 motion. Accordingly, these remaining arguments fail to satisfy 12 the “unobstructed procedural shot” criterion of the § 2255 escape hatch. See Ivy 13 v. Pontesso, 328 F.3d 1057, 1059-60 (9th Cir. 2003) (“§ 2255's remedy is not 14 inadequate or ineffective merely because § 2255's gatekeeping provisions prevent 15 the petitioner from filing a second or successive petition. . . . [I]t is not enough that 16 the petitioner is presently barred from raising his claim of innocence by motion 17 under § 2255. He must never have had the opportunity to raise it by motion.”). 18 Based upon the foregoing, Petitioner has failed to demonstrate that § 2255 19 provides an inadequate or ineffective remedy. Therefore, Petitioner may not 20 pursue his present arguments in his instant § 2241 petition via the § 2255 escape 21 hatch. Rather, he must raise them via a proper § 2255 motion and, because 22 Petitioner has already pursued a prior § 2255 motion, he must first obtain the Ninth 23 Circuit’s authorization to file such second or successive § 2255 motion. See Moore 24 v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (A “habeas petitioner may not avoid 25 the limitations imposed on successive petitions by styling his petition as one 26 pursuant to 28 U.S.C. § 2241”). As Petitioner has not demonstrated he has 27 obtained the Ninth Circuit’s authorization to file a second or successive § 2255 28 motion, the Government’s motion to dismiss (Civ. Case, ECF No. 15) is GRANTED 1 ||and Petitioner’s instant § 2255 motion and amendments thereto (Civ. Case, ECF 2 ||Nos. 1, 20, 22, 24, 26; Crim. Case, ECF No. 255), though disguised as a § 2241 3 ||petition and/or Rule 36 motion, must be DISMISSED for lack of jurisdiction. 4 ||Because the Court lacks jurisdiction over Petitioner's disguised § 2255 motion, it 5 || also lacks jurisdiction over his request for the appointment of counsel (Crim. Case, 6 || ECF No. 248) and such request is therefore DENIED for lack of jurisdiction. See, 7 ||e.g., United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (“When a statute 8 || removes jurisdiction over a particular type of case from the district courts, it must 9 necessity also remove from the district courts’ consideration motions for the 10 ||appointment of counsel to file the particular claims over which the district courts 11 jurisdiction.”). Finally, Petitioner's August 5, 2019 request for an extension of 12 ||time to file an additional reply to the Government’s motion to dismiss or to 13 ||otherwise supplement his disguised § 2255 motion (Civ. Case, ECF No. 22, at 4- 14 |/6) is DENIED AS MOOT. 16 17 ||Dated: October 7, 2019 , 18 Py Tid. Misihoux 19 Honorable Barry Ted Moskewitz United States District Judge 20 21 22 23 24 25 26 27 28