1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC AGEE, ) Case No.: 1:22-cv-01424-SKO (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATIONS TO 14 WARDEN, FCI MENDOTA, ) DISMISS PETITION FOR WRIT OF HABEAS 15 Respondent. ) CORPUS ) 16 ) [21-DAY OBJECTION DEADLINE] )_ 17
18 Petitioner is in the custody of the Bureau of Prisons (“BOP”) at the Federal Correctional 19 Institution in Mendota, California. He filed the instant federal petition on November 4, 2022, 20 challenging his conviction and sentence pursuant to 28 U.S.C. § 2241. Because Petitioner does not 21 satisfy the savings clause in 28 U.S.C. § 2255 which would allow Petitioner to challenge his 22 conviction by way of § 2241, the Court will recommend that the instant petition be DISMISSED. 23 BACKGROUND 24 On August 22, 2017, Petitioner pled guilty in the United States District Court for the District 25 of Oregon to unlawfully and knowingly possessing with intent to distribute fifty grams or more of 26 methamphetamine (21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii)), and possession of a firearm in furtherance 27 of his intent to distribute methamphetamine (18 U.S.C. § 924(c)(1)(A)(i)). United States v. Agee, 28 1 6:16-cr-00428-AA-1 (D. Or.).1 On February 8, 2018, Petitioner was sentenced to a 180-month term of 2 imprisonment. Id. (ECF 58.) 3 On February 11, 2019, Petitioner filed a motion to vacate, set aside or correct sentence 4 pursuant to 28 U.S.C. § 2255. Id. (ECF 64.) On May 7, 2020, the sentencing court granted the 5 parties’ stipulated request to vacate and set aside the sentence. Id. (ECF 118.) On September 1, 2020, 6 Petitioner was resentenced to a total term of 120 months. Id. (ECF 130.) Petitioner filed two motions 7 for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and both motions were denied. 8 Id. (ECF 132, 144, 148, 159.) 9 On November 4, 2022, Petitioner filed the instant habeas petition raising a challenge based on 10 the Supreme Court’s recent decision in United States v. Taylor, 142 S.Ct. 2015 (2022). 11 DISCUSSION 12 A federal prisoner who wishes to challenge the validity or constitutionality of his federal 13 conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence 14 under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also Stephens v. 15 Herrera, 464 F.3d 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007). In such cases, only the 16 sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. Generally, a prisoner may not collaterally 17 attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 18 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; 19 see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980). “The general rule is that a motion 20 under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his 21 detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a 22 petition under 28 U.S.C. § 2241.” Stephens, 464 F.3d at 897 (citations omitted). 23 An exception exists by which a federal prisoner may seek relief under § 2241 if he can 24 demonstrate the remedy available under § 2255 to be "inadequate or ineffective to test the validity of 25 26 1 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to 27 sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). Judicial notice may be taken of court records. Valerio v. Boise Cascade 28 Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.). 1 his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting 28 U.S.C. § 2255); 2 see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a very narrow 3 exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.2003). The remedy under § 2255 usually 4 will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or 5 because a remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964) 6 (a court’s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 7 F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition 8 inadequate). 9 The Ninth Circuit has held that Section 2255 provides an ‘inadequate and ineffective’ remedy 10 (and thus that the petitioner may proceed under Section 2241) when the petitioner: (1) makes a claim 11 of actual innocence; and, (2) has never had an ‘unobstructed procedural shot’ at presenting the claim. 12 Harrison, 519 F.3d at 959; Stephens, 464 F.3d at 898; accord Marrero, 682 F.3d at 1192. The burden 13 is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 14 F.2d 76, 83 (9th Cir. 1963). If a petitioner fails to meet this burden, then his § 2241 petition must be 15 dismissed for lack of jurisdiction. Ivy, 328 F.3d at 1060. 16 Here, Petitioner is challenging the validity and constitutionality of his conviction and sentence 17 as imposed by the United States District Court for the District of Oregon, rather than an error in the 18 administration of his sentence. Therefore, the appropriate procedure would be to file a motion 19 pursuant to § 2255 in the Oregon District Court, not a habeas petition pursuant to § 2241 in this Court. 20 Petitioner argues the remedy under § 2255 is inadequate and ineffective because he has not had an 21 unobstructed procedural opportunity to present his claim. Petitioner’s argument is unavailing.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC AGEE, ) Case No.: 1:22-cv-01424-SKO (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATIONS TO 14 WARDEN, FCI MENDOTA, ) DISMISS PETITION FOR WRIT OF HABEAS 15 Respondent. ) CORPUS ) 16 ) [21-DAY OBJECTION DEADLINE] )_ 17
18 Petitioner is in the custody of the Bureau of Prisons (“BOP”) at the Federal Correctional 19 Institution in Mendota, California. He filed the instant federal petition on November 4, 2022, 20 challenging his conviction and sentence pursuant to 28 U.S.C. § 2241. Because Petitioner does not 21 satisfy the savings clause in 28 U.S.C. § 2255 which would allow Petitioner to challenge his 22 conviction by way of § 2241, the Court will recommend that the instant petition be DISMISSED. 23 BACKGROUND 24 On August 22, 2017, Petitioner pled guilty in the United States District Court for the District 25 of Oregon to unlawfully and knowingly possessing with intent to distribute fifty grams or more of 26 methamphetamine (21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii)), and possession of a firearm in furtherance 27 of his intent to distribute methamphetamine (18 U.S.C. § 924(c)(1)(A)(i)). United States v. Agee, 28 1 6:16-cr-00428-AA-1 (D. Or.).1 On February 8, 2018, Petitioner was sentenced to a 180-month term of 2 imprisonment. Id. (ECF 58.) 3 On February 11, 2019, Petitioner filed a motion to vacate, set aside or correct sentence 4 pursuant to 28 U.S.C. § 2255. Id. (ECF 64.) On May 7, 2020, the sentencing court granted the 5 parties’ stipulated request to vacate and set aside the sentence. Id. (ECF 118.) On September 1, 2020, 6 Petitioner was resentenced to a total term of 120 months. Id. (ECF 130.) Petitioner filed two motions 7 for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and both motions were denied. 8 Id. (ECF 132, 144, 148, 159.) 9 On November 4, 2022, Petitioner filed the instant habeas petition raising a challenge based on 10 the Supreme Court’s recent decision in United States v. Taylor, 142 S.Ct. 2015 (2022). 11 DISCUSSION 12 A federal prisoner who wishes to challenge the validity or constitutionality of his federal 13 conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence 14 under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also Stephens v. 15 Herrera, 464 F.3d 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007). In such cases, only the 16 sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. Generally, a prisoner may not collaterally 17 attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 18 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; 19 see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980). “The general rule is that a motion 20 under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his 21 detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a 22 petition under 28 U.S.C. § 2241.” Stephens, 464 F.3d at 897 (citations omitted). 23 An exception exists by which a federal prisoner may seek relief under § 2241 if he can 24 demonstrate the remedy available under § 2255 to be "inadequate or ineffective to test the validity of 25 26 1 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to 27 sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). Judicial notice may be taken of court records. Valerio v. Boise Cascade 28 Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.). 1 his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting 28 U.S.C. § 2255); 2 see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a very narrow 3 exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.2003). The remedy under § 2255 usually 4 will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or 5 because a remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964) 6 (a court’s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 7 F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition 8 inadequate). 9 The Ninth Circuit has held that Section 2255 provides an ‘inadequate and ineffective’ remedy 10 (and thus that the petitioner may proceed under Section 2241) when the petitioner: (1) makes a claim 11 of actual innocence; and, (2) has never had an ‘unobstructed procedural shot’ at presenting the claim. 12 Harrison, 519 F.3d at 959; Stephens, 464 F.3d at 898; accord Marrero, 682 F.3d at 1192. The burden 13 is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 14 F.2d 76, 83 (9th Cir. 1963). If a petitioner fails to meet this burden, then his § 2241 petition must be 15 dismissed for lack of jurisdiction. Ivy, 328 F.3d at 1060. 16 Here, Petitioner is challenging the validity and constitutionality of his conviction and sentence 17 as imposed by the United States District Court for the District of Oregon, rather than an error in the 18 administration of his sentence. Therefore, the appropriate procedure would be to file a motion 19 pursuant to § 2255 in the Oregon District Court, not a habeas petition pursuant to § 2241 in this Court. 20 Petitioner argues the remedy under § 2255 is inadequate and ineffective because he has not had an 21 unobstructed procedural opportunity to present his claim. Petitioner’s argument is unavailing. 22 Although Petitioner has filed a prior motion pursuant to § 2255 in the sentencing court, he has not 23 shown that he has sought and been denied authorization to file a second or successive § 2255 motion. 24 Thus, he has not shown that this avenue of relief is unavailable. 25 Based on the foregoing, the Court concludes that Petitioner has not demonstrated that Section 26 2255 constitutes an “inadequate or ineffective” remedy for raising his claims. Section 2241 is not the 27 proper statute for raising Petitioner's claims, and the petition should be summarily dismissed for lack 28 of jurisdiction. 1 ORDER 2 IT IS HEREBY ORDERED that the Clerk of the Court is DIRECTED to assign a United 3 States District Judge to this case. 4 RECOMMENDATION 5 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 6 DISMISSED for lack of jurisdiction. 7 This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 9 Local Rules of Practice for the United States District Court, Eastern District of California. Within 10 twenty-one days after being served with a copy of this Findings and Recommendation, any party may 11 file written objections with the Court and serve a copy on all parties. Such a document should be 12 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 13 Objections shall be served and filed within ten court days (plus three days if served by mail) after 14 service of the Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 15 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time 16 may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 17 1991). 18 19 IT IS SO ORDERED.
20 Dated: November 9, 2022 /s/ Sheila K. Oberto . 21 UNITED STATES MAGISTRATE JUDGE
22 23 24 25 26 27 28