1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COURTNEY RICARDO ALFORD, No. 2:21-cv-02293 AC 12 Petitioner, 13 v. ORDER AND 14 PAUL THOMPSON, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, filed the instant habeas corpus action 18 pursuant to 28 U.S.C. § 2241 in this judicial district, where he is confined. ECF No. 1. On July 19 29, 2020, the court ordered respondent to file an answer to the petition or a motion to dismiss 20 within 60 days. ECF No. 5. Respondent filed a motion to dismiss the § 2241 petition on 21 September 28, 2020. ECF No. 8. Petitioner filed an opposition and the time for respondent’s 22 reply has expired. ECF No. 9. For the reasons explained below, the undersigned recommends 23 granting respondent’s motion to dismiss based on lack of jurisdiction. 24 I. Factual and Procedural History 25 Petitioner was convicted of conspiracy to possess with the intent to distribute cocaine on 26 January 12, 1993 following a jury trial in the Southern District of Florida. ECF No. 5-1 at 9 27 (docket sheet). The jury acquitted him of the remaining counts of the indictment. ECF No. 5-1 at 28 9. He was sentenced on May 4, 1993 to life imprisonment. ECF No. 5-1 at 10. 1 Following protracted and multiple appeals by both petitioner and the government, which 2 are not relevant to the pending proceeding, the Eleventh Circuit Court of Appeals ultimately 3 determined that petitioner was not entitled to a new trial and his conviction was affirmed. See 4 United States v. Cerceda, et al., 172 F.3d 806 (11th Cir. 1999) (per curiam); United States v. 5 Alford, 248 F.3d 1183 (11th Cir. 2001). The United States Supreme Court denied the petition for 6 writ of certiorari on October 1, 2001. See Alford v. United States, 534 U.S. 862 (2001). 7 Petitioner filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. 8 § 2255 on November 12, 2002. See ECF No. 5-1 at 22 (docket sheet). The trial court denied this 9 motion on June 30, 2003. ECF No. 5-1 at 22. Beginning in 2006, petitioner filed numerous other 10 post-conviction challenges to his sentence in the trial court as well as the Eleventh Circuit Court 11 of Appeals. See ECF No. 501 at 22-32. Most notably, petitioner’s motion to reduce his sentence 12 pursuant to The First Step Act of 2018 was denied by trial court on May 7, 2019. See ECF No. 5- 13 1 at 30. 14 In the present § 2241 application, petitioner argues that he should be permitted to 15 challenge his sentence in this jurisdiction where he is confined because “no penalty phase was 16 adjudicated and no amount of cocaine was charged in the indictment.” ECF No. 1 at 3. As a 17 result, petitioner contends that he could only be sentenced to a maximum of 30 years pursuant to 18 21 U.S.C. § 841(a)(1)(b)(1)(c). ECF No. 1 at 3. Also, in a cursory sentence, petitioner submits 19 that the First Step Act requires him to be resentenced because his sentence is not legal. Id. 20 II. Motion to Dismiss 21 Respondent moves to dismiss on the ground that petitioner’s challenges to his sentence 22 cannot be raised in a § 2241 petition because he does not meet any of the “escape hatch” 23 exceptions of 28 U.S.C. § 2255(e). ECF No. 5. Petitioner does not claim that he is actually 24 innocent and he has had numerous unobstructed procedural shots at challenging his sentence on 25 direct appeal, in several § 2255 motions, as well as numerous post-conviction challenges. Simply 26 because the trial court and the Eleventh Circuit Court of Appeals have rejected petitioner’s claims 27 on the merits does not mean that he was denied the opportunity to challenge his sentence. Id. 28 //// 1 Therefore, respondent submits that this court lacks jurisdiction over petitioner’s claims since 2 petitioner is merely confined here. 3 In his traverse, which the court construes as petitioner’s opposition to the motion to 4 dismiss, petitioner submits that he is confined within this court’s territory thereby conferring this 5 court with jurisdiction. ECF No. 7. Petitioner further argues that it was futile for him to 6 previously challenge the drug amount used to calculate his sentence because he had not yet served 7 the 30 year statutory maximum to which he contends he should have been sentenced. Id. 8 Regarding the merits of his sentencing challenge, petitioner contends that the sentencing court 9 violated his Fifth Amendment right to due process by sentencing him for conduct for which the 10 jury acquitted him. Id. 11 III. Legal Standards 12 Federal inmates have two avenues for pursuing habeas corpus relief. First, a challenge to 13 a federal prisoner’s conviction or sentence can be raised via a motion to vacate, set aside, or 14 correct the sentence pursuant to 28 U.S.C. § 2255. Section 2255 motions are filed in the judicial 15 district where the conviction occurred. Alternatively, a federal inmate challenging the manner, 16 location, or conditions involved in the execution of their sentence, may file a habeas corpus 17 petition pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 18 2000). Jurisdiction over a § 2241 petition lies in the district of the prisoner’s confinement. 19 Federal law also provides one exception to these broad categories of post-conviction relief 20 referred to as the “escape hatch.” 21 An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, 22 shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that 23 such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of 24 his detention. 25 28 U.S.C. § 2255(e). 26 This “escape hatch” permits a federal prisoner to “‘file a habeas corpus petition pursuant 27 to § 2241 to contest the legality of a sentence where his remedy under § 2255 is ‘inadequate or 28 ineffective to test the legality of his dentition.’” Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 1 2006) (quoting Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000)). However, courts 2 have applied this exception very narrowly. See Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 3 2003). Additionally, petitioner has the burden of demonstrating that his § 2255 remedy is 4 inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 5 In order to qualify for this escape hatch exception, a federal prisoner must not only make a claim 6 of actual innocence, but also demonstrate that they did not have an unobstructed procedural shot 7 at presenting that claim for relief. Stephens v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COURTNEY RICARDO ALFORD, No. 2:21-cv-02293 AC 12 Petitioner, 13 v. ORDER AND 14 PAUL THOMPSON, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, filed the instant habeas corpus action 18 pursuant to 28 U.S.C. § 2241 in this judicial district, where he is confined. ECF No. 1. On July 19 29, 2020, the court ordered respondent to file an answer to the petition or a motion to dismiss 20 within 60 days. ECF No. 5. Respondent filed a motion to dismiss the § 2241 petition on 21 September 28, 2020. ECF No. 8. Petitioner filed an opposition and the time for respondent’s 22 reply has expired. ECF No. 9. For the reasons explained below, the undersigned recommends 23 granting respondent’s motion to dismiss based on lack of jurisdiction. 24 I. Factual and Procedural History 25 Petitioner was convicted of conspiracy to possess with the intent to distribute cocaine on 26 January 12, 1993 following a jury trial in the Southern District of Florida. ECF No. 5-1 at 9 27 (docket sheet). The jury acquitted him of the remaining counts of the indictment. ECF No. 5-1 at 28 9. He was sentenced on May 4, 1993 to life imprisonment. ECF No. 5-1 at 10. 1 Following protracted and multiple appeals by both petitioner and the government, which 2 are not relevant to the pending proceeding, the Eleventh Circuit Court of Appeals ultimately 3 determined that petitioner was not entitled to a new trial and his conviction was affirmed. See 4 United States v. Cerceda, et al., 172 F.3d 806 (11th Cir. 1999) (per curiam); United States v. 5 Alford, 248 F.3d 1183 (11th Cir. 2001). The United States Supreme Court denied the petition for 6 writ of certiorari on October 1, 2001. See Alford v. United States, 534 U.S. 862 (2001). 7 Petitioner filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. 8 § 2255 on November 12, 2002. See ECF No. 5-1 at 22 (docket sheet). The trial court denied this 9 motion on June 30, 2003. ECF No. 5-1 at 22. Beginning in 2006, petitioner filed numerous other 10 post-conviction challenges to his sentence in the trial court as well as the Eleventh Circuit Court 11 of Appeals. See ECF No. 501 at 22-32. Most notably, petitioner’s motion to reduce his sentence 12 pursuant to The First Step Act of 2018 was denied by trial court on May 7, 2019. See ECF No. 5- 13 1 at 30. 14 In the present § 2241 application, petitioner argues that he should be permitted to 15 challenge his sentence in this jurisdiction where he is confined because “no penalty phase was 16 adjudicated and no amount of cocaine was charged in the indictment.” ECF No. 1 at 3. As a 17 result, petitioner contends that he could only be sentenced to a maximum of 30 years pursuant to 18 21 U.S.C. § 841(a)(1)(b)(1)(c). ECF No. 1 at 3. Also, in a cursory sentence, petitioner submits 19 that the First Step Act requires him to be resentenced because his sentence is not legal. Id. 20 II. Motion to Dismiss 21 Respondent moves to dismiss on the ground that petitioner’s challenges to his sentence 22 cannot be raised in a § 2241 petition because he does not meet any of the “escape hatch” 23 exceptions of 28 U.S.C. § 2255(e). ECF No. 5. Petitioner does not claim that he is actually 24 innocent and he has had numerous unobstructed procedural shots at challenging his sentence on 25 direct appeal, in several § 2255 motions, as well as numerous post-conviction challenges. Simply 26 because the trial court and the Eleventh Circuit Court of Appeals have rejected petitioner’s claims 27 on the merits does not mean that he was denied the opportunity to challenge his sentence. Id. 28 //// 1 Therefore, respondent submits that this court lacks jurisdiction over petitioner’s claims since 2 petitioner is merely confined here. 3 In his traverse, which the court construes as petitioner’s opposition to the motion to 4 dismiss, petitioner submits that he is confined within this court’s territory thereby conferring this 5 court with jurisdiction. ECF No. 7. Petitioner further argues that it was futile for him to 6 previously challenge the drug amount used to calculate his sentence because he had not yet served 7 the 30 year statutory maximum to which he contends he should have been sentenced. Id. 8 Regarding the merits of his sentencing challenge, petitioner contends that the sentencing court 9 violated his Fifth Amendment right to due process by sentencing him for conduct for which the 10 jury acquitted him. Id. 11 III. Legal Standards 12 Federal inmates have two avenues for pursuing habeas corpus relief. First, a challenge to 13 a federal prisoner’s conviction or sentence can be raised via a motion to vacate, set aside, or 14 correct the sentence pursuant to 28 U.S.C. § 2255. Section 2255 motions are filed in the judicial 15 district where the conviction occurred. Alternatively, a federal inmate challenging the manner, 16 location, or conditions involved in the execution of their sentence, may file a habeas corpus 17 petition pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 18 2000). Jurisdiction over a § 2241 petition lies in the district of the prisoner’s confinement. 19 Federal law also provides one exception to these broad categories of post-conviction relief 20 referred to as the “escape hatch.” 21 An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, 22 shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that 23 such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of 24 his detention. 25 28 U.S.C. § 2255(e). 26 This “escape hatch” permits a federal prisoner to “‘file a habeas corpus petition pursuant 27 to § 2241 to contest the legality of a sentence where his remedy under § 2255 is ‘inadequate or 28 ineffective to test the legality of his dentition.’” Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 1 2006) (quoting Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000)). However, courts 2 have applied this exception very narrowly. See Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 3 2003). Additionally, petitioner has the burden of demonstrating that his § 2255 remedy is 4 inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 5 In order to qualify for this escape hatch exception, a federal prisoner must not only make a claim 6 of actual innocence, but also demonstrate that they did not have an unobstructed procedural shot 7 at presenting that claim for relief. Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006); 8 Harrison v. Ollison, 519 F.3d 952, 959 (2008). Actual innocence is defined as not mere legal 9 insufficiency of the evidence. See Bousley v. United States, 523 U.S. 614, 623 (1998). “To 10 establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more 11 likely than not that no reasonable juror would have convicted him.” Bousley, 523 U.S. at 623. 12 The Ninth Circuit recently held that a federal inmate may proceed with a § 2241 petition if he 13 establishes that he is actually innocent of a non-capital sentence under the then mandatory United 14 States Sentencing Guidelines. Allen v. Ives, 950 F.3d 1184, rehearing en banc denied, 976 F.3d 15 863 (9th Cir. 2020). 16 To determine whether petitioner had an unobstructed procedural shot at presenting a 17 claim for relief, the court considers “whether the legal basis for petitioner's claim ‘did not arise 18 until after he had exhausted his direct appeal and first § 2255 motion;’ and (2) whether the law 19 changed ‘in any way relevant’ to petitioner's claim after that first § 2255 motion.” Harrison, 519 20 F.3d at 960 (quoting Ivy v. Pontesso, 328 F.3d at 1060-61)). Moreover, “[a]n intervening court 21 decision must ‘effect a material change in the applicable law’ to establish unavailability” of a 22 claim on direct appeal or in a prior section 2255 motion. Alaimalo v. United States, 645 F.3d 23 1042, 1047 (9th Cir. 2011) (quoting Harrison, 519 F.3d at 960). A subsequent court decision that 24 “provides further clarification” does not materially change the applicable law. Alaimalo, 645 25 F.3d at 1048. A federal inmate’s § 2255 remedy will not be deemed “inadequate or ineffective” 26 merely because the claims presented in it were denied or precluded from being raised in a second 27 or successive motion. See Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988) (emphasizing 28 that “[a] remedy is not inadequate or ineffective under section 2255 merely because the 1 sentencing court denied relief on the merits.’); Moore v. Reno, 15 F.3d 1054 (9th Cir. 1999) 2 (concluding that a prisoner’s § 2255 remedy was not inadequate or ineffective because the court 3 of appeal refused to grant his application to file a second or successive motion). 4 IV. Analysis 5 Before this court can address the merits of petitioner’s sentencing challenges, it must 6 determine whether it has jurisdiction. The undersigned finds that petitioner has had an 7 unobstructed procedural shot at presenting his challenges to his sentence. Petitioner’s § 2255 8 remedy was not “inadequate or ineffective” to challenge the specific amount of cocaine possessed 9 or the sentencing judge’s reliance on conduct for which the jury acquitted petitioner. A review of 10 the sentencing court’s docket reveals numerous “unobstructed procedural shots” at challenging 11 his sentence. Petitioner’s argument that he had to wait to file his sentencing challenge until after 12 he had served 30 years in prison is nonsensical. The legal basis for petitioner’s sentencing 13 challenge was available to him before his direct appeal and first § 2255 motion were adjudicated. 14 To the extent that petitioner relies on the First Step Act to request resentencing, petitioner filed a 15 motion to reduce his sentence on that basis in the Southern District of Florida. His Section 2255 16 remedy was not inadequate or ineffective simply because his requests for relief were denied. See 17 Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988); Moore v. Reno, 15 F.3d 1054 (9th Cir. 18 1999). Nor does petitioner argue that the escape hatch exception applies because he is actually 19 innocent. Therefore, petitioner fails to demonstrate that he should be permitted to proceed with 20 this § 2241 petition. 21 Since petitioner does not qualify for the escape hatch exception, this court does not have 22 jurisdiction over his § 2241 claims challenging his sentence. For all these reasons, the 23 undersigned recommends granting respondent’s motion to dismiss and denying petitioner’s § 24 2241 petition based on lack of jurisdiction. 25 V. Plain Language Summary for Pro Se Party 26 Since petitioner is acting as his own attorney in this case, the court wants to make sure 27 that the words of this order are understood. The following information is meant to explain this 28 order in plain English and is not intended as legal advice. ] The court has determined that you do not meet the escape hatch exception to be able to 2 || present your sentencing claim in a § 2241 petition in this court. If you disagree with this 3 || recommendation you have 14 days to explain why it is not the correct result. Label your 4 || explanation as “Objections to Magistrate Judge’s Recommendation.” 5 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign this 6 || matter to a district court judge. 7 IT IS FURTHER RECOMMENDED that: 8 1. Respondent’s motion to dismiss (ECF No. 5) be granted based on lack of jurisdiction. 9 2. Petitioner’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be 10 denied. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 13 || after being served with these findings and recommendations, any party may file written 14 || objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 || objections shall be served and filed within fourteen days after service of the objections. The 17 || parties are advised that failure to file objections within the specified time may waive the right to 18 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | DATED: February 6, 2024 ~ 20 Htttenr— Lhor—e_ ALLISON CLAIRE 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28