1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN CANO, No. 2:23-cv-2216 TLN CSK P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 WARDEN, FCI HERLONG, 15 Respondent. 16 17 Petitioner is a former federal prisoner proceeding pro se and in forma pauperis with an 18 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. At the time he filed this 19 action, petitioner was a federal prisoner housed at FCI-Herlong but has since been transferred to 20 Residential Reentry Center (“RRC”) placement with Volunteers of America in Texas. 21 Respondent’s fully briefed motion to dismiss and petitioner’s motion to convert this action into a 22 civil rights action are before the Court. 23 As discussed below, respondent’s motion to dismiss should be granted, and petitioner’s 24 motion to convert this action into a civil rights action should be denied. 25 I. BACKGROUND 26 A jury found petitioner guilty of one count of conspiracy to possess with intent to 27 distribute 5 kilograms or more of cocaine (count 1), and one count of possession with intent to 28 distribute more than 5 kilograms of cocaine and aiding and abetting (count 2). Am. Pet. at 2 1 (ECF No. 10.) Petitioner was sentenced to life in prison on each count, to run concurrently, and a 2 five year term of supervised release. United States v. Cano, Case No. 1:06-CR-0007 (N.D. Tex. 3 May 2, 2006);1 Respondent’s Appendix (“App.”) at 9-12)2 (ECF No. 18-1). 4 Petitioner filed an appeal. The United States Court of Appeals for the Fifth Circuit (“Fifth 5 Circuit”) affirmed the conviction but vacated the sentence and remanded for re-sentencing after a 6 Faretta hearing.3 United States v. Cano, 519 F.3d 512 (5th Cir. 2008) (App. at 14-20). 7 After petitioner was granted the right to proceed pro se at re-sentencing, probation 8 prepared a new presentence report. Pet’r’s Request Judicial Notice (“RJN”) at 15 (ECF No. 20). 9 On April 18, 2008, the government objected to probation’s classification of petitioner as a career 10 offender and argued that petitioner’s corrected total offense level should be 34 and criminal 11 history category V, resulting in a sentencing guidelines range of 235 to 293 months. Id. at 18. 12 On June 6, 2008, the trial court sentenced petitioner to a federal prison term of 262 months as to 13 Count 1; 262 months as to Count 2 with the terms of imprisonment to run concurrently; and 14 imposed a five year term of supervised release. United States v. Cano, Case No. 1:06-CR-0007 15 (App. at 22-25). 16 On March 30, 2009, petitioner filed a motion to vacate, set aside, or correct his sentence 17 under 28 U.S.C. § 2255, which was assigned a civil case number, Cano v. United States, Case No. 18 1:09-cv-0051 (App. at 57 (ECF No. 137)). The sentencing court denied the motion on December 19 12, 2011. Cano v. United States, Case No. 1:09-cv-0051. Petitioner filed an appeal; on August 6, 20 2012, the Fifth Circuit found that petitioner failed to make a substantial showing that a 21 1 A court may take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 22 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts, both 23 within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”) (internal quotation omitted). 24 2 Respondent’s Appendix (ECF No. 18-1) contains Bates numbering, and all citations to the 25 Appendix refer to the Bates stamped numbers rather than to the Court’s ECF page numbers. Where the citation to the Appendix includes a reference to an ECF number, the ECF number 26 reflects the docket number in petitioner’s criminal Case No. 1:06-CR-0007. 27 3 Pursuant to Faretta v. California, 422 U.S. 806, 815-21 (1975), defendants have a constitutional 28 right to represent themselves in federal court. 1 constitutional right had been denied and denied petitioner’s motion for a certificate of 2 appealability. United States v. Cano, Case No. 12-10098 (5th Cir. 2012). Petitioner filed a 3 petition for a writ of certiorari in the United States Supreme Court, which was denied on October 4 7, 2013. Cano v. United States, Case No. 12-10506 (2013). 5 On September 29, 2014, the Fifth Circuit denied petitioner’s motion to consider a 6 successive 28 U.S.C. § 2255 motion, finding that Alleyne v. United States, 570 U.S. 99 (2013), 7 was not made retroactively applicable to cases on collateral review. In re: Benjamin Lucero 8 Cano, Case No. 14-10696 (5th Cir. 2014) (citing In re Kemper, 735 F.3d 211, 212 (5th Cir. 9 2013)) (App. at 59 (ECF No. 153)). 10 On June 9, 2016, petitioner filed his first motion for sentence reduction under 18 U.S.C. 11 § 3582(c)(2)4 based on the 2014 Drug Sentencing Guidelines Amendment (Amendment 782 to 12 the U.S. Sentencing Guidelines) (hereafter “Amendment 782”).5 United States v. Cano, Case No. 13 1:06-cr-0007 (App. at 59 (ECF Nos. 155, 156)). In the government’s October 4, 2016 response, 14 the government agreed with probation’s finding that petitioner was eligible for a sentence 15 reduction but opposed a full reduction of petitioner’s sentence based on the following reasons: 16 Criminal History - At the time of his original sentencing, the defendant was a Criminal History Category VI under the sentencing 17 4 “[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a 18 sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 19 28 U.S.C. § 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set 20 forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) 21 (emphasis added).
22 5 “In 2014, Congress approved Amendment 782 to the Sentencing Guidelines, which 23 retroactively amended the Drug Quantity Table, U.S.S.G. § 2D1.1(c), thereby reducing by two levels the offense levels assigned to specified quantities of drugs.” United States v. Wilson, 24 8 F.4th 970, 973 (9th Cir. 2021). Amendment 782 provisions were “made retroactive by Amendment 788[.]” United States v. Bright, 2022 WL 717881, at *1 (S.D.N.Y. Mar. 10, 2022), 25 reconsideration denied, 2022 WL 2716477 (S.D.N.Y. July 13, 2022), aff'd, 2023 WL 3830783 (2d Cir. June 6, 2023), aff’d, 2023 WL 3830783 (2d Cir. June 6, 2023); see also United States v. 26 Flores, 2019 WL 7494942, at *1 (D. Minn. June 27, 2019) (“Amendment 782 to the United States 27 Sentencing Guidelines reduced most drug quantity base offense levels under § 2D1.1, while Amendment 788 to the United States Sentencing Guidelines made Amendment 782 retroactively 28 applicable to defendants already sentenced.”). 1 guidelines. His convictions included five Robberies, three Failures to Appear, seven Thefts, an Assault with a Deadly Weapon, Battery, 2 Burglary, and others. 3 Offense Conduct - The defendant was convicted by a jury of Possession with Intent to Distribute Cocaine. He had been stopped 4 by law enforcement for a traffic violation and 40 kilogram bricks of cocaine were found in his vehicle. 5 Post-sentencing Conduct - The defendant is incarcerated at a 6 maximum security facility of the Bureau of Prisons. He has at least six disciplinary matters on his record, including two for Possession 7 of a Dangerous Weapon. 8 Id. (ECF No. 160). On November 3, 2016, the sentencing court denied petitioner’s first motion 9 for sentence reduction, noting petitioner’s 10 motion was brought under § 3582(c)(2) for a reduction in the term of 11 imprisonment imposed based on a guidelines sentencing range that has subsequently been lowered and made retroactive by the United 12 States Sentencing Commission pursuant to 28 U.S.C. § 994(u), and having considered such motion, and taking into account the policy 13 statement set forth at USSG § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, 14 Id. (ECF No. 162). The sentencing court added the following comments: 15 The defendant received a sentence of 262 months on each of counts 16 1 and 2 to run concurrently. The sentence was fair in light of the factors in Title 18, United States Code, Section 3553(a), including 17 his criminal history, offense conduct or relevant conduct, and the post-sentencing conduct. Therefore, the defendant shall not be 18 granted a further reduction in his sentence. 19 Id. Petitioner filed an appeal, and on June 29, 2017, the Fifth Circuit denied petitioner’s motion 20 for leave to proceed in forma pauperis and dismissed the appeal as frivolous. United States v. 21 Cano, Case No. 16-11656 (App. at 60 (ECF No. 171)). 22 On December 18, 2018, petitioner filed a second motion to reduce his sentence under 23 18 U.S.C. § 3582(c)(2). Id. (App. at 61 (ECF No. 172)). On February 6, 2019, the sentencing 24 court denied the second motion, finding that petitioner failed to demonstrate he was entitled to 25 reconsideration of the prior orders by the sentencing court or the Fifth Circuit. Id. (ECF No. 173). 26 On June 7, 2021, petitioner filed a third motion for reduction of sentence under 18 U.S.C. 27 § 3582(c)(2). Id. (ECF No. 174). The sentencing court denied the third motion on June 9, 2021, 28 1 for the reasons stated in the February 6, 2019 order. Id. (App. at 61 (ECF No. 175)). 2 On February 11, 2022, petitioner filed a fourth motion for reduction in sentence under 3 18 U.S.C. § 3582(c)(2). Id. (ECF No. 176). On February 15, 2022, the sentencing court denied 4 petitioner’s fourth motion for the reasons stated in the court’s prior orders and noted that “[t]he 5 decision whether to reduce [a] sentence is in the sound discretion of the district judge.” Id. 6 (quoting United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995) (ECF No. 177)). 7 Petitioner filed an appeal. On October 19, 2022, the Fifth Circuit found that petitioner “failed to 8 show that he has a nonfrivolous argument that the district court abused is discretion in denying 9 his § 3582(c)(2) motion,” and dismissed the appeal as frivolous. United States v. Cano, Case No. 10 22-10242 (5th Cir. 2022) (App. at 62 (ECF No. 186)). 11 On January 23, 2023, petitioner filed a habeas petition pursuant to 28 U.S.C. § 2241 in the 12 United States District Court for the Central District of California. Cano v. J. Doerer, 2023 WL 13 8870550 (App. at 71). On February 15, 2023, petitioner was ordered to show cause why the case 14 should not be dismissed for lack of jurisdiction. Id. (App. at 64-70). On May 12, 2023, the 15 Central District judge found that petitioner’s § 2241 petition was a “disguised” motion under 16 28 U.S.C. § 2255 and dismissed the action for lack of jurisdiction. Id. (App. at 71-81). 17 On May 8, 2024, the BOP awarded petitioner 365 days First Step Act (“FSA”) time 18 credits toward early transfer to supervised release. (App. at 5, 8.) In addition, the BOP found 19 petitioner earned an additional 95 days of FSA time credits that can be applied toward community 20 placement. (Id. at 5, 9.) 21 On July 9, 2024, petitioner signed a notice of change of address advising he was 22 scheduled for transfer to RRC placement on July 10, 2024. Pet’r’s Notice (“Ntc.”) (ECF No. 24.) 23 II. MOTION TO DISMISS 24 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 25 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 26 entitled to relief in the district court.” Rule 4 of the Rules Governing Section 2254 Cases.6 The 27 6 Rules Governing Section 2254 Cases may be applied to other petitions for writ of habeas 28 corpus at the Court’s discretion. See, id., Rule 1; Fed. R. Civ. P. 81(a)(4). 1 Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the 2 motion attacks the pleadings for failing to exhaust state remedies or being in violation of the 3 state's procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using 4 Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. 5 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review 6 motion to dismiss for state procedural default). 7 A. Current Operative Pleading and Pending Motions 8 On January 8, 2024, petitioner filed an amended petition for writ of habeas corpus under 9 28 U.S.C. § 2241. Am. Pet. (ECF No. 10). Petitioner raised two grounds for relief. First, “the 10 BOP and this administration have denied the application of accrued program days towards the 11 transfer into prerelease custody or to begin the term of supervised release imposed by the 12 sentencing court.” Id. at 4. Second, “the BOP failed to consider 1B1.10 as a policy statement and 13 amendments 782; 788, as retroactively applicable to comply with the statutory requisite that the 14 remainder of prisoner[’]s imposed term of imprisonment be computed under applicable law.” Id. 15 at 6. In conclusion, petitioner acknowledged that there is no longer any reason to resolve the 16 residential drug abuse program (“RDAP”) issues noted in his amended petition, and stated that in 17 amending his petition, the only claim he makes is a claim related to his FSA earned time credits 18 and the BOP’s refusal to apply them so he could gain early supervised release. Id. at 8. 19 As relief, petitioner specifically sought the following: 20 Where the BOP has petitioner[’s] current projected release date of July 4, 2026, “via good time” and an “RRC date of Oct. 1, 2025,” 21 denying FTC application (warden’s e-mail dated 12/21/2023, Ex. C): petitioner requests that this Court direct the BOP to adjudicate 22 petitioner’s release date considering application of Amendment 782/ Policy statement 1B1.10; Applicability of accrued credits; and 23 transfer to being supervised release. 24 Id. at 10. In the motion appended to his amended petition,7 petitioner explained that in ground 25 two, he claimed the BOP removed its ability to conduct the individualized application of factor 26
27 7 In addition to exhibits (ECF No. 10 at 11-26), petitioner appended a document styled, “Motion to Expedite Amended Petition for Habeas Corpus (id. at 28-34) to his amended petition. Such 28 motion is denied as moot in light of petitioner’s subsequent release to RCC placement. 1 five, for the sole purpose of reviewing U.S.S.G. § 1B1.10(b)(1) as the policy statement and 2 introduction of Amendment 782, to ensure petitioner spent a portion of the final twelve months of 3 imprisonment in an RCC. Id. at 31. Petitioner reiterated his failed efforts to have his sentence 4 reduced in the sentencing court, and explained that he now seeks an order requiring the “BOP to 5 recognize the applicability of 1B1.10 as the policy statement referenced in 18 U.S.C. 3621(b), to 6 enforce the ‘Drug Minus Two’ retroactive amendment to include the modification provisions set 7 forth in section 3582(c)(2) under 28 U.S.C. § 994(a)(2),” or in the alternative for the Court to 8 reduce petitioner’s term of imprisonment to time served and require the BOP to terminate 9 petitioner’s supervised release. Id. 10 On May 9, 2024, respondent filed a motion to dismiss. (ECF No. 18.) On July 8, 2024, 11 petitioner filed an opposition. (ECF No. 23.) Respondent did not file a reply. 12 On June 3, 2024, petitioner filed a motion to convert the habeas petition into a civil rights 13 action. (ECF No. 19.) On June 7, 2024, petitioner filed a request for judicial notice in connection 14 with his conversion motion. Pet’r’s RJN. 15 B. Exhaustion of Administrative Remedies 16 Respondent argues that, contrary to petitioner’s claim in his amended petition, petitioner 17 did not exhaust his administrative remedies, and therefore there is no final order or record from 18 BOP for this Court to review, and the amended petition should be dismissed as to both grounds 19 for relief. Resp’t’s Mot. at 1 (ECF No. 18). Petitioner counters that because the exhaustion 20 requirement is discretionary, the Court should find waiver appropriate because petitioner sent 21 multiple emails to various administrative staff, including his case manager, unit manager, warden, 22 and the regional office prior to seeking informal resolution yet they failed to respond directly and 23 timely, and the administration intentionally avoided considering factor number 5 as required by 24 18 U.S.C. § 3621(b). Pet’r’s Opp’n at 5. 25 The exhaustion prerequisite for filing a § 2241 petition is “is prudential, rather 26 than jurisdictional.” Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017). If a petitioner has 27 not properly exhausted his claims, the district court, in its discretion, may require the petitioner to 28 exhaust his administrative remedies before proceeding in court, or may “waive the prudential 1 exhaustion requirement if ‘administrative remedies are inadequate or not efficacious, pursuit of 2 administrative remedies would be a futile gesture, irreparable injury will result, or the 3 administrative proceedings would be void.’” Id. (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 4 (9th Cir. 2004)). 5 Here, petitioner appears to concede his failure to exhaust, but asks the Court to waive the 6 exhaustion requirement based on his email efforts to informally resolve his issues. The Court 7 finds the prudential exhaustion requirement should be waived, but for a different reason. 8 Petitioner should have exhausted the administrative remedies process while he was incarcerated, 9 but his term of incarceration has now expired. Petitioner has been awarded FSA credits and has 10 been released to RRC placement. Because petitioner is no longer in BOP custody, it does not 11 appear petitioner can use the BOP’s administrative remedies process. See 28 C.F.R. § 542.10(a) 12 (explaining that the administrative remedy program “allow[s] an inmate to seek formal review of 13 an issue relating to any aspect of his/her own confinement”) (emphasis added). To the extent 14 petitioner seeks his earned time credits under the FSA to reduce his supervised release term, 15 denying his petition on exhaustion grounds would prevent him from obtaining relief for any time 16 he has overserved. Thus, the Court recommends that the prudential exhaustion requirement be 17 waived. 18 C. Petitioner’s First Ground for Relief 19 Respondent argues that petitioner’s first ground must be dismissed because the claim 20 lacks case and controversy because the BOP awarded petitioner 365 days of FSA earned time 21 credits. Resp’t’s Mot. at 2 (citing App. at 3-4). Respondent contends that the Court must dismiss 22 ground one for lack of Article III standing and ripeness. Id. In his opposition, petitioner 23 reiterates his efforts to obtain early release to RRC placement. Pet’r’s Opp’n at 7 (ECF No. 23). 24 But petitioner does not dispute that after he filed this action, the BOP awarded him 365 days of 25 FSA earned time credits, or that he has since been released to RRC placement. Id., passim. 26 The case or controversy requirement of Article III of the Constitution deprives the Court 27 of jurisdiction to hear moot cases. Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983); 28 N.A.A.C.P., Western Region v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir. 1984). A case 1 becomes moot if the “the issues presented are no longer ‘live’ or the parties lack a legally 2 cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1982). This Court is 3 “without power to decide questions that cannot affect the rights of the litigants before them.” 4 North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam) (quoting Aetna Life Ins. Co. v. 5 Hayworth, 300 U.S. 227, 240-41 (1937)). 6 Here, the record demonstrates that, contrary to petitioner’s claim that the BOP had denied 7 him FSA credits, the BOP found petitioner was assessed with a low recidivism level, was eligible 8 for earned time credits and has a projected release date of July 4, 2025, via FSA release. 9 Declaration of Jennifer Vickers (“Vickers Decl.”), BOP paralegal specialist (App. at 3). The July 10 4, 2025 projected release date is one year earlier than the projected release date petitioner claimed 11 he was subject to in his amended petition. Am. Pet. at 10. In addition, petitioner was awarded 12 365 days of FSA time credits toward early transfer to supervised release, and he earned an 13 additional 95 days of time credits that can be applied towards community placement. Vickers 14 Decl. at 3-4; App. at 7-8. Such time period comports with the 365 days of FSA time credits 15 petitioner sought to have applied. Am. Pet. at 29. Further, the record reflects that petitioner was 16 transferred to RRC placement on or about July 10, 2024. Pet’r’s Ntc. (ECF No. 24). Thus, 17 petitioner’s first ground for relief is moot and should be dismissed. 18 D. Petitioner’s Second Ground for Relief 19 1. The Parties’ Arguments 20 Respondent argues that petitioner’s second ground must be dismissed because this Court 21 has no § 2241 jurisdiction to resentence an inmate claiming retroactive application of Amendment 22 782. Resp’t’s Mot. at 2. Respondent points to the Central District’s dismissal of petitioner’s 23 identical § 2241 demand for resentencing under Amendment 782, which found “[p]etitioner has 24 not shown that he is factually innocent and that he never had the opportunity to raise his claims in 25 [his court-of-conviction].” Id. (citing Cano v. J. Doerer, 2023 WL 8870550 (C.D. Cal. May 12, 26 2023)). Therefore, respondent contends that the petition must be construed as a § 2255 motion, 27 which must be brought in the sentencing court, the Northern District of Texas. Id. 28 Petitioner argues that he did not seek to be re-sentenced and maintains that his action 1 arises under § 2241 because he invoked the statutory authorities of 18 §§ 3621(b) and 3624(g), 2 “requesting that factor number (5) be viewed from a novel perspective as a question of law to be 3 determined whether 1B1.10(b)(c) is a policy statement that qualifies as a ‘pertinent policy 4 statement’ to be applied in a manner consistent with 18 U.S.C. § 3621(b) and whether this 5 administration has denied petitioner’s procedural due process.” Pet’r’s Opp’n at 6. Petitioner 6 argues that the BOP ignored the mandates of 18 U.S.C. § 3621(b) through its failure to consider 7 1B1.10 as a pertinent policy statement issued by the Sentencing Commission under 28 U.S.C. 8 § 994(a)(2). Id. at 7-8. Petitioner explained that in his Central District petition, he “merely raised 9 claims that Amendment 782 had been demonstrated to be applicable to reduce petitioner’s term of 10 imprisonment from 262 months to 210 months; that 210 months have been exceeded; the 11 amended guideline range of 168-210 months was never acknowledged nor imposed upon 12 petitioner’s term, despite having filed four separate § 3582(c)(2) motions and arguing the 13 sentencing court’s abuse of discretion and bias[ed] actions,” and raised the “same question of law 14 pursuant to and under the statutory authorities that govern pre-release.” Id. at 4. 15 2. Jurisdiction 16 Generally, a petition brought under 28 U.S.C. § 2241 is reserved for federal prisoners 17 challenging “the manner, location, or conditions of a sentence’s execution.” Harrison v. Ollison, 18 519 F.3d 952, 956 (9th Cir. 2008). Federal prisoners seeking to challenge the legality of their 19 confinement must do so through a motion brought under 28 U.S.C. § 2255. See Marrero v. Ives, 20 682 F.3d 1190, 1192 (9th Cir. 2012). 21 Under § 2255(e), a “savings clause” or “escape hatch” exists by which a federal prisoner 22 may seek relief under § 2241 if he can demonstrate that the remedy available under § 2255 was 23 “inadequate or ineffective to test the legality of his detention.” Hernandez v. Campbell, 204 F.3d 24 861, 864-65 (9th Cir. 2000). “[A] § 2241 petition is available under the ‘escape hatch’ of § 2255 25 when a petitioner (1) makes a claim of actual innocence, and (2) has not had an ‘unobstructed 26 procedural shot’ at presenting that claim.” Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) 27 (citations omitted), cert. denied, 549 U.S. 1313 (2007). This is a narrow exception. See Ivy v. 28 Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). The burden is on the prisoner to show that his 1 § 2255 remedies are inadequate or ineffective. See, e.g., Redfield v. United States, 315 F.2d 76, 2 83 (9th Cir. 1963). A prisoner cannot circumvent the limitations imposed on successive petitions 3 by restyling his petition as one under § 2241. Stephens, 464 F.3d at 897; Moore v. Reno, 185 4 F.3d 1054, 1055 (9th Cir. 1999) (per curiam) (petitioner attempted to circumvent the successive 5 motion provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) by 6 bringing § 2255 claims in a § 2241 petition). 7 3. Discussion 8 Here, petitioner does not claim actual innocence for the crimes of conviction -- conspiracy 9 to possess with intent to distribute and possession with intent to distribute five kilograms or more 10 of cocaine. This alone precludes petitioner from availing himself of the escape hatch clause of 11 § 2255 because he is required to demonstrate actual innocence and that he was denied an 12 unobstructed procedural shot at presenting his claim. See Muth v. Fondren, 676 F.3d 815, 818 13 (9th Cir. 2012); Stephens, 464 F.3d at 898. 14 But petitioner also fails to demonstrate that he did not have an unobstructed procedural 15 shot at presenting his claim to the sentencing court. Indeed, as the history of petitioner’s 16 litigation in the sentencing court confirms, he cannot demonstrate that he did not have an 17 unobstructed procedural shot at seeking a reduction in his sentence based on Amendment 782. 18 Although his first § 2255 motion was filed and denied prior to 2014, the year the amended 19 Sentencing Guidelines were adopted, petitioner later filed four separate motions for reduction in 20 sentence under 18 U.S.C. § 3582(c)(2) based on Amendment 782, all of which were denied by the 21 sentencing court, and two appeals were denied by the Fifth Circuit.8 United States v. Cano, Case 22 No. 1:06-CR-0007 (App. at 59-62 (ECF Nos. 162, 171, 173, 175, 177, 186)). The record amply 23 8 The record confirms that the sentencing court exercised its discretion by considering 24 petitioner’s eligibility for further reduction in sentence based on Amendment 782, but because of petitioner’s criminal history, offense conduct and post-conviction conduct, the sentencing court 25 found that petitioner’s 262 month sentence on each of two counts to run concurrently was fair, stating: “the defendant shall not be granted a further reduction in his sentence.” United States v. 26 Cano, Case No. 1:06-CR-0007 (App. at 59 (ECF No. 162)). While petitioner is correct that at re- 27 sentencing, his sentencing guidelines range was reduced because he was no longer identified as a career offender, the sentencing court apparently found any further reduction inappropriate given 28 the factors identified in his order denying the motion. 1 shows that petitioner had an opportunity to seek a reduction in his sentence based on Amendment 2 782. 3 Petitioner argues that various federal statutes apply in his effort to require the BOP or this 4 Court to use Amendment 782 to release him from supervised release now. But although 5 petitioner contends he is not seeking a reduction in sentence, petitioner was sentenced to 262 6 months, and any efforts to apply a 210 month sentence as provided in Amendment 782 would be 7 a reduction in sentence, which only the sentencing court can do. It is well settled that actions 8 seeking a sentence reduction pursuant to 18 U.S.C. § 3582(c) must be brought before the 9 sentencing court, not the custodial court. See United States v. Ono, 72 F.3d 101, 102 (9th Cir. 10 1995) (a “motion under § 3582(c)(2) is undoubtedly ‘a step in the criminal case’” to be 11 considered by the sentencing court); Mitchell v. Warden, 2020 WL 5111209, at *2 (C.D. Cal. 12 Aug. 27, 2020) (“A motion under § 3582(c) to modify a prison term . . . must be addressed to the 13 sentencing court.”). 14 Further, as argued by respondent, Amendment 782 does not provide § 2241 savings clause 15 jurisdiction. Jones v. Hendrix, 599 U.S. 465, 469 (2023). In Jones, the Supreme Court held that 16 the “limitation on second or successive motions [does not] make[ ] § 2255 ‘inadequate or 17 ineffective’ such that the prisoner may proceed with his statutory claim under § 2241.”9 Jones, 18 599 U.S. at 470. The high court explained that the savings clause in § 2255(e) “cover[s] unusual 19 circumstances in which it is impossible or impracticable for a prisoner to seek relief from the 20 sentencing court.” Id. at 474; see also id. at 478 (“After AEDPA, as before it, the savings clause 21 preserves recourse to § 2241 in cases where unusual circumstances make it impossible or 22 impracticable to seek relief in the sentencing court, as well as for challenges to detention other 23 than collateral attacks on a sentence.”). The Supreme Court provided two examples of such 24 9 In reaching their conclusion in Jones, the Supreme Court concluded: “the best interpretation is 25 the straightforward one. Section 2255(h) specifies the two limited conditions in which Congress has permitted federal prisoners to bring second or successive collateral attacks on their sentences. 26 The inability of a prisoner with a statutory claim to satisfy those conditions does not mean that he 27 can bring his claim in a habeas petition under the saving[s] clause. It means that he cannot bring it at all. Congress has chosen finality over error correction in his case.” Jones, 599 U.S. at 477- 28 80 (citations omitted). 1 unusual circumstances: the dissolution of the sentencing court, or where the prisoner is unable to 2 be present at the hearing. Id. at 474-75 (collecting cases). Petitioner identifies no such unusual 3 circumstances, and review of the record supplies none. Rather, the record reflects petitioner was 4 able to seek application of Amendment 782 in the sentencing court through multiple motions to 5 reduce his sentence. United States v. Cano, Case No. 1:06-CR-0007 (App. at 59-62 (ECF Nos. 6 155, 156, 172, 176)). 7 Finally, to the extent petitioner is attempting to seek immediate termination of custody 8 because the BOP’s failure to reduce the length of his sentence pursuant to Amendment 782 9 violated his constitutional rights, such claim was already addressed by a different court. Cano v. 10 J. Doerer, 2023 WL 8870550 (App. at 71). The Central District court determined that such 11 challenge was a disguised § 2255 motion because petitioner was challenging the constitutionality 12 of his 262-month sentence in light of Amendment 782, and he failed to demonstrate his actual 13 innocence or that he lacked an unobstructed procedural shot to bring his claim in the sentencing 14 court. Id. (App. at 78-80). Thus, the petition must be construed as a § 2255 motion, not a habeas 15 petition under § 2241, and must be brought in the sentencing court, the Northern District of 16 Texas. Id. (App. at 80). 17 Because petitioner failed to satisfy the savings clause of § 2255, the Court lacks 18 jurisdiction over petitioner’s second ground filed under § 2241, and ground two must be 19 construed as a motion under § 2255, which must be filed in the sentencing court, the Northern 20 District of Texas. 21 E. Conclusion 22 For all of the above reasons, the Court finds that respondent’s motion to dismiss should be 23 granted. Although petitioner’s failure to exhaust should be waived, petitioner’s first ground is 24 moot, and the Court lacks jurisdiction over petitioner’s second ground raised in the § 2241 25 amended petition because it challenges the legality of his sentence and therefore must be 26 construed as a § 2255 motion. Petitioner has not been granted leave by the Fifth Circuit Court of 27 Appeals to file a second or successive § 2255 motion; therefore, it would be futile to transfer this 28 action to the sentencing court in the Northern District of Texas for consideration of petitioner’s 1 second ground as a § 2255 motion. 2 III. MOTION TO CONVERT TO A FEDERAL CIVIL RIGHTS ACTION 3 Petitioner seeks leave to convert his habeas petition into a federal civil rights complaint 4 under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 5 (1971). Pet’r’s Motion to Convert (“Conv. Mot.”) (ECF No. 19); see also Pet’r’s Opp’n at 12. A 6 request for judicial notice accompanied the conversion motion. (ECF No. 20.) 7 Because the amended petition may not be considered on § 2241 habeas review, the Court 8 considers whether to construe the petition as a civil rights complaint. See Wilwording v. 9 Swenson, 404 U.S. 249, 251 (1971) (holding that district courts have discretion to construe a 10 habeas petition attacking conditions of confinement as a federal civil rights complaint).10 “If the 11 complaint is amenable to conversion on its face, meaning that it names the correct defendants and 12 seeks the correct relief, the court may recharacterize the petition.” Nettles v. Grounds, 830 F.3d 13 922, 936 (9th Cir. 2016) (quoting Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). 14 Here, the amended petition is not amenable to conversion on its face. Petitioner does not 15 name the correct defendants or the correct relief.11 In the request for judicial notice filed in 16 support of his conversion motion, petitioner claims he provided the BOP with “Court documents” 17 filed in Case No. 1:06-cr-0007, that probation calculated and recommended an “amended 18 guidelines range” of between “168 to 210 months” pursuant to Amendment 782, 788 and 19 20 10 Wilwording was superseded by statute on other grounds, Prison Litigation Reform Act of 1995 21 (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321-71, as recognized in Woodford v. Ngo, 548 U.S. 81, 84 (2006), 22
23 11 To date, the Supreme Court has only recognized a Bivens remedy in the context of the Fourth, Fifth, and Eighth Amendments. See Bivens, 403 U.S. at 390, 397 (Fourth Amendment prohibition 24 against unreasonable searches and seizures); Davis v. Passman, 442 U.S. 228, 243-44 (1979) (Fifth Amendment gender-discrimination); Carlson v. Green, 446 U.S. 14, 20 (1980) (Eighth 25 Amendment Cruel and Unusual Punishments Clause for failure to provide adequate medical treatment). The Supreme Court has recently made clear that “expanding the Bivens remedy is 26 now a disfavored judicial activity,” and has “consistently refused to extend Bivens to any new 27 context or new category of defendants. Ziglar v. Abbasi, 582 U.S. 120, 134 (2017) (citations omitted). 28 1 U.S.S.G. § 1B1.10(b)(1).12 (ECF No. 20 at 2-3.) But the record shows that petitioner is serving a 2 sentence of 262 months, not 210 months, and his multiple efforts to have the sentencing court 3 reduce his sentence were denied. In addition, petitioner’s circumstances have changed since the 4 amended petition was written; indeed, petitioner has been granted FSA credits and released to 5 RRC placement. Thus, the Court cannot construe petitioner’s § 2241 motion as a federal civil 6 rights complaint, and his motion to convert his habeas petition (ECF No. 19) should be denied. 7 IV. CONCLUSION 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Petitioner’s request to take judicial notice (ECF No. 20) is partially granted. 10 2. Petitioner’s motion to expedite this action (ECF No. 10 at 28-34) is denied. 11 Further, IT IS RECOMMENDED that: 12 1. Respondent’s motion to dismiss (ECF No. 18) be granted; 13 2. Petitioner’s motion to convert this action into a civil rights action (ECF No. 19) be 14 denied; and 15 3. This action be dismissed without prejudice. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 objections shall be served and filed within fourteen days after service of the objections. The 22 parties are advised that failure to file objections within the specified time may waive the right to 23 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 ///
12 Petitioner cites “782 worksheet, Appendix” without a date or page number. Id. at 2. A search 26 of the Appendix reflected no document bearing that title. Thus, petitioner’s request for judicial 27 notice is partially granted, with the exception of his reference to the “782 worksheet.” The Court cannot take notice of a court document that was not provided. 28 1 | Dated: December 4, 2024 Chm Spo (EL CHI S00 KIM 3 UNITED STATES MAGISTRATE JUDGE 4 /A/cano2216.mtd.2241 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16