Clifton Milton v. J. Shartle

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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