Daranda v. Colbert

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ben Daranda, No. CV-22-00219-TUC-CKJ

10 Petitioner, ORDER

11 v.

12 D. Colbert,

13 Respondent. 14 15 This matter is dismissed for lack of subject matter jurisdiction. The statutory 16 restriction, 28 U.S.C § 2255(h), on second or successive motions to vacate a sentence based 17 solely on more favorable interpretations of statutory law does not make a motion to vacate 18 a sentence inadequate or ineffective under the savings clause, 28 U.S.C. § 2255(e), to allow 19 a petitioner to test the legality of detention by proceeding under the general habeas statute, 20 28 U.S.C. § 2241. Jones v. Hendrix, 143 S.Ct. 1857 (2023). 21 Petitioner relied on Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020) and other ninth 22 circuit precedent holding that a federal prisoner my use § 2241 to challenge a sentence 23 pursuant to § 2255(e) if he claims actual innocence and has not had an unobstructed 24 procedural shot at presenting the claim because the circuit law governing his appeal and 25 first § 2255 motion manifested an erroneous interpretation of statutory law that has since 26 been corrected by the Supreme Court. 27 The Jones opinion abrogates the circuit precedent relied on by Petitioner to 28 establish his ability to seek relief pursuant to § 2241. “Although Mr. Daranda preserves 1 his disagreement with the Jones holding, he acknowledges that in light of that holding, 2 the legal basis for his effort to seek relief pursuant to § 2241is no longer valid.” (P Resp. 3 to Suppl. Citation of Authority (Doc. 38) at 2 (citing see Horton v. Lovett, 72 F.4th 825, 4 827 (7th Cir. 2023) (finding Jones abrogated seventh circuit precedent regarding § 5 2255(e); Jones, 143 S. Ct. at 1867-68 (noting that ninth circuit followed seventh circuit 6 precedent regarding 2255(e)). 7 On December 19, 2022, Magistrate Judge D. Thomas Ferraro issued a Report and 8 Recommendation (R&R) (Doc.26), without the benefit of Jones recommending the Court 9 grant the Petition and transfer the case to the United States District Court, Western 10 District of Louisiana for resentencing. The duties of the district court in connection with a 11 R&R by a Magistrate Judge are set forth in Rule 72 of the Federal Rules of Civil 12 Procedure and 28 U.S.C. § 636(b)(1). The district court makes a de novo determination as 13 to those portions of the R&R to which there are objections, 28 U.S.C. § 636(b)(1)(C), and 14 may “accept, reject, or modify, in whole or in part, the findings or recommendations 15 made by the magistrate judge,” 28 U.S.C. § 636(b)(1). Fed.R.Civ.P. 72(b). In light of 16 Jones, the Court rejects the R&R, and denies the Petition for lack of subject matter 17 jurisdiction. 18 Accordingly, 19 IT IS ORDERED that the Report and Recommendation (Doc. 26) is REJECTED. 20 IT IS FURTHER ORDERED that the Petition under 28 U.S.C. § 2241 (Doc. 1) 21 is DENIED. 22 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment and 23 close this case. 24 IT IS FURTHER ORDERED that in the event Petitioner files an appeal, the Court 25 declines to issue a certificate of appealability, pursuant to Rule 11(a) of the Rules 26 ///// 27 ///// 28 ///// || Governing Section 2254 cases because reasonable jurists would not find the Court’s || procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 3 Dated this 12th day of September, 2023. 4 Ein LC Qecyencon 6 Honorable Cin . J6fgenson , United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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