(HC) Capps v. Ciolli

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 DENNIS RAY CAPPS, Case No. 1:20-cv-00766-SAB-HC

11 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO DISMISS, DISMISSING 12 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 13 CIOLLI, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF 14 Respondent. APPEALABILITY

15 (ECF No. 44) 16 17 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241. The parties have consented to the jurisdiction of a United States 19 Magistrate Judge. (ECF Nos. 25, 26). 20 I. 21 BACKGROUND 22 Petitioner is currently incarcerated at the United States Penitentiary in Atwater, 23 California. (ECF No. 1 at 1.)1 Petitioner was found guilty of possession with intent to distribute 24 fifty grams or more of methamphetamine and was sentenced to a mandatory term of life in prison 25 under 21 U.S.C. § 841(b)(1)(A)(viii). United States v. Capps, 716 F.3d 494, 495–96 (8th Cir. 26 2013). On June 11, 2013, the Eighth Circuit affirmed the judgment. United States v. Capps, 716 27 F.3d 494, 496 (8th Cir. 2013). 1 On October 9, 2014, Petitioner filed a motion to vacate, set aside, or correct sentence 2 pursuant to 28 U.S.C. § 2255 in the United States District Court for the Eastern District of 3 Missouri. Motion, Capps v. United States, No. 1:14-cv-00144-AGF (E.D. Mo. Oct. 9, 2014), 4 ECF No. 1.2 On November 23, 2015, an evidentiary hearing was held. Minutes, Capps, No. 1:14- 5 cv-00144-AGF (E.D. Mo. Nov. 23, 2015), ECF No. 26. On March 15, 2018, the district court 6 denied Petitioner’s § 2255 motion. Capps v. United States, No. 1:14-cv-00144-AGF, 2018 WL 7 1335093 (E.D. Mo. Mar. 15, 2018). 8 On June 2, 2020, Petitioner filed the instant petition for writ of habeas corpus, asserting 9 that his prior Missouri drug convictions are not qualifying predicates for § 851 enhancement 10 under Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 570 U.S. 11 254 (2013). (ECF No. 1.) Respondent filed a motion to dismiss, arguing that Petitioner’s claims 12 may not be raised under § 2241 and no escape hatch exception applies. (ECF No. 10.) On 13 September 2, 2021, the Court denied the motion to dismiss. (ECF No. 22.) 14 Respondent then moved to stay the proceedings pending adjudication of Petitioner’s 18 15 U.S.C. § 3582 motion for compassionate release by the United States District Court for the 16 Eastern District of Missouri. (ECF No. 28.) On December 21, 2021, the Court granted the stay 17 because both the § 2241 petition before this Court and Petitioner’s supplemental authority in 18 support of his 18 U.S.C. § 3582 motion for compassionate release filed in the sentencing court 19 raise similar issues regarding whether Petitioner’s prior state convictions qualify for enhanced 20 sentencing. (ECF No. 29.) 21 On March 31, 2023, the Court lifted the stay. (ECF No. 41.) On July 6, 2023, Respondent 22 filed the instant motion to dismiss in light of the Supreme Court’s recent decision in Jones v. 23 Hendrix, 143 S. Ct. 1857 (2023). (ECF No. 44.) To date, no opposition or statement of non- 24 opposition has been filed, and the time for doing so has passed. 25 ///

26 2 The Court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” U.S. ex rel. Robinson Rancheria Citizens Council v. 27 Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (internal quotation marks and citation omitted)). See also United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed 1 II. 2 DISCUSSION 3 A. Jurisdiction Under 28 U.S.C. § 2241 4 A federal prisoner who wishes to challenge the validity or constitutionality of his federal 5 conviction or sentence must do so by moving the court that imposed the sentence to vacate, set 6 aside, or correct the sentence under 28 U.S.C. § 2255. Alaimalo v. United States, 645 F.3d 1042, 7 1046 (9th Cir. 2011). “The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive 8 means by which a federal prisoner may test the legality of his detention, and that restrictions on 9 the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. 10 § 2241.” Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citations omitted). 11 Nevertheless, a “savings clause” or “escape hatch” exists in § 2255(e) by which a federal 12 prisoner may seek relief under § 2241 if he can demonstrate the remedy available under § 2255 13 to be “inadequate or ineffective to test the validity of his detention.” Alaimalo, 645 F.3d at 1047 14 (internal quotation marks omitted) (quoting 28 U.S.C. § 2255); Harrison v. Ollison, 519 F.3d 15 952, 956 (9th Cir. 2008); Hernandez v. Campbell, 204 F.3d 861, 864–65 (9th Cir. 2000) (per 16 curiam). The Ninth Circuit has recognized that it is a very narrow exception. See Ivy v. Pontesso, 17 328 F.3d 1057, 1059 (9th Cir. 2003). The remedy under § 2255 usually will not be deemed 18 inadequate or ineffective merely because a prior § 2255 motion was denied, or because a remedy 19 under § 2255 is procedurally barred. Id. The burden is on the petitioner to show that the remedy 20 is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 21 “An inquiry into whether a § 2241 petition is proper under these circumstances is critical 22 to the determination of district court jurisdiction” because § 2241 petitions must be heard in the 23 custodial court while § 2255 motions must be heard in the sentencing court. Hernandez, 204 F.3d 24 at 865. If the instant petition is properly brought under 28 U.S.C. § 2241, it may be heard in this 25 Court. Conversely, if the instant petition is in fact a disguised § 2255 motion, it must be heard in 26 the sentencing court. 27 The Supreme Court recently held “that § 2255(e)’s saving clause does not permit a 1 restrictions on second or successive § 2255 motions by filing a § 2241 petition,” declaring that 2 “[t]he inability of a prisoner with a statutory claim to satisfy those conditions [required to bring a 3 second or successive § 2255 motion] does not mean that he can bring his claim in a habeas 4 petition under the saving clause. It means that he cannot bring it at all.” Jones v. Hendrix, 143 S. 5 Ct. 1857, 1864, 1869 (2023).3 6 Here, Petitioner raises a claim of actual innocence, asserting that his prior Missouri drug 7 convictions are not qualifying predicates for § 851 enhancement under Descamps v. United 8 States, 570 U.S. 254 (2013), and Mathis v. United States, 579 U.S. 500 (2016). (ECF No. 1.) 9 Descamps concerned the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and 10 “whether sentencing courts may also consult th[e] additional documents [used in the modified 11 categorial approach] when a defendant was convicted under an ‘indivisible’ statute—i.e., one not 12 containing alternative elements—that criminalizes a broader swath of conduct than the relevant 13 generic offense.” Descamps, 570 U.S. at 257, 258. Mathis concerned “a different kind of 14 alternatively phrased law: not one that lists multiple elements disjunctively, but instead one that 15 enumerates various factual means of committing a single element” and “whether ACCA treats 16 this kind of statute as it does all others, imposing a sentence enhancement only if the state 17 crime’s elements correspond to those of a generic offense—or instead whether the Act makes an 18 exception for such a law, so that a sentence can be enhanced when one of the statute’s specified 19 means creates a match with the generic offense, even though the broader element would not.” 20 579 U.S. at 506–07. In light of Jones, the Court finds that Petitioner cannot bring his statutory 21 Descamps and Mathis claims in a § 2241 petition. Accordingly, this Court lacks jurisdiction over 22 the petition, and the petition should be dismissed. 23 B. Certificate of Appealability 24 The Court now turns to whether a certificate of appealability (“COA”) should issue. See 25 Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (“Where a petition purportedly brought 26 3 “[W]here intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority,” the Ninth 27 Circuit has held that “district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 1 | under § 2241 is merely a ‘disguised’ § 2255 motion, the petitioner cannot appeal from the denial 2 | of that petition without a COA.”). A petitioner seeking a writ of habeas corpus has no absolute 3 | entitlement to appeal a district court’s denial of his petition, and an appeal is only allowed in 4 | certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. To 5 | obtain a certificate of appealability under 28 U.S.C. § 2253(c), a petitioner “must make a 6 | substantial showing of the denial of a constitutional right, . . . includ[ing] showing that 7 | reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 8 | been resolved in a different manner or that the issues presented were ‘adequate to deserve 9 | encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quoting 10 | Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). 11 In the present case, the Court finds that reasonable jurists would not find the Court’s 12 | determination that the petition should be dismissed debatable or wrong, or that Petitioner should 13 | be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 14 II. 15 ORDER 16 Based on the foregoing, the Court HEREBY ORDERS that: 17 1. Respondent’s motion to dismiss (ECF No. 44) is GRANTED; 18 2. The petition for writ of habeas corpus be DISMISSED for lack of jurisdiction; 19 3. The Clerk of Court is DIRECTED to CLOSE THE CASE; and 20 4. The Court DECLINES to issue a certificate of appealability. 21 IT IS SO ORDERED. DAM Le 23 | Dated: _ August 18, 2023 _ ef UNITED STATES MAGISTRATE JUDGE

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