(HC) Castillo-Chavez v. Trate

• Court: District Court, E.D. California
• Decided: March 27, 2023
• Docket: 1:23-cv-00413
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GERARDO CASTILLO-CHAVEZ, ) Case No.: 1:23-cv-00413-SKO (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATIONS TO 14 B.M. TRATE, Warden, ) DISMISS PETITION FOR WRIT OF HABEAS 15 Respondent. ) CORPUS ) 16 ) [21-DAY OBJECTION DEADLINE] ) 17

18 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ 19 of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is in the custody of the Bureau of Prisons at 20 the Federal Correctional Institution in Atwater, California. He filed the instant federal petition on 21 March 20, 2023. Upon review of the petition, the Court finds it lacks jurisdiction. Petitioner fails to 22 satisfy the “savings clause” or “escape hatch” of § 2255(e) which would permit consideration of his § 23 2241 petition. Therefore, the Court will recommend that the instant petition be DISMISSED. 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 BACKGROUND1 2 I. Factual Background2 3 The Gulf Cartel, a drug trafficking organization, moves large quantities of cocaine and 4 marijuana across the Mexican border into the United States. The enforcement arm of the Gulf Cartel, 5 the Zetas, includes individuals known as “sicarios” (hired assassins). In the spring of 2006, Miguel 6 Trevino, a high-ranking commander in the Zetas who operated in the Nuevo Laredo area, ordered a 7 group of sicarios to kill Jesus “Chuy” Resendez (“Chuy Resendez”), a member of the rival Sinaloa 8 Cartel. On March 18, 2006, a group of three sicarios arrived at an address in Laredo, where Chuy 9 Resendez resided. After Gerardo Ramos, Chuy Resendez's nephew, informed the sicarios that his 10 uncle was not home, the sicarios opened fire, wounding Ramos. On March 31, 2006, a group of 11 sicarios again arrived at the same address in Laredo, and again the sicarios opened fire, this time 12 wounding Julio Resendez, Chuy Resendez's brother. On April 2, 2006, the sicarios located Chuy 13 Resendez, and shot and killed him, as well as Chuy Resendez's other nephew, Mariano Resendez. The 14 Government alleged that Petitioner was a sicario involved in all three shootings and that the shootings 15 were carried out in furtherance of the Gulf Cartel's drug trafficking enterprise. 16 II. Procedural Background3 17 Petitioner was charged and convicted of various interrelated counts. He initially proceeded to 18 trial in January 2010, but the jury was unable to reach a verdict as to most counts and he was retried in 19 January 2012. Petitioner was convicted on all counts and sentenced to a total term of life 20 imprisonment. 21 Petitioner appealed his conviction and sentence to the Fifth Circuit Court of Appeals, which 22 affirmed the sentencing court’s judgment. Although Petitioner sought a writ of certiorari, it was denied 23

24 1 Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir. 1981). The Court hereby takes judicial notice of the opinions of 25 the United State Court of Appeal, Fifth Appellate District, affirming judgment, and the United States District Court, Southern District of Texas, denying Petitioner’s 28 U.S.C. § 2255 motion to vacate conviction. See 26 United States v. Castillo-Chavez, 555 F. App'x 389, 393 (5th Cir. 2014); Castillo-Chavez v. United States, Case No. 5:16-cv-00173 (S.D.Tex. 2021). 27 2 The factual background is taken from the Fifth Circuit Court of Appeals’ opinion in Castillo-Chavez, 555 F. App'x at 393. 28 3 The procedural background is taken from the opinion of the United States District Court, Southern District of Texas, denying the § 2255 motion. Castillo-Chavez, Case No. 5:16-cv-00173 (S.D. Tex. 2021). 1 and Petitioner then sought collateral review. On September 29, 2015, the Texas District Court 2 dismissed with prejudice Petitioner’s motion under 28 U.S.C. § 2255 to vacate, set aside or correct 3 sentence. On the same day, the court entered judgment. On October 21, 2015, Petitioner filed a motion 4 for reconsideration of the order dismissing his § 2255 motion. In the motion for reconsideration, 5 Petitioner asserted new grounds for relief, and it was dismissed as a second or successive motion. 6 Petitioner sought a certificate of appealability from the sentencing court and the Fifth Circuit Court of 7 Appeals which were both denied. 8 On June 23, 2016, Petitioner filed a new motion under 28 U.S.C. § 2255. In this motion, 9 Petitioner contended that he was entitled to relief pursuant to Johnson v. United States, 135 S.Ct. 2551 10 (2015), which announced a new rule of constitutional law made retroactive by Welch v. United States. 11 136 S.Ct. 1257 (2016). The court determined that this motion was a successive motion and since no 12 order authorizing the court to proceed had been issued by the Fifth Circuit, the court dismissed the 13 motion. Petitioner did not then seek authorization from the Fifth Circuit. More than three years later, 14 on August 6, 2019, Petitioner filed with the Fifth Circuit a motion under 28 U.S.C. § 2244 for an order 15 authorizing the district court to consider a second or successive application for relief under 28 U.S.C. 16 § 2255. In the request for authorization, Petitioner again urged that Johnson announced a new rule 17 “settled in Demaya (sic) and Davis.” On October 15, 2019, the Fifth Circuit issued an order 18 authorizing the sentencing court to consider Petitioner’s successive 28 U.S. C. § 2255 motion. 19 On February 25, 2021, the Texas court first determined that Petitioner had made a sufficient 20 showing that he was authorized to proceed with a successive § 2255 motion. Castillo-Chavez, Case 21 No. 5:16-cv-00173, at 3. The court found Petitioner could not overcome the hurdle of actually 22 proving that the relief he sought relied on a new, retroactive rule of constitutional law. Id. at 4. In his 23 motion, Petitioner alleged that his sentence for violation of 18 U.S.C. § 924(c)(1)(C) (“firearm count”) 24 was invalidated by the Supreme Court’s ruling in United States v. Davis, 139 S.Ct. 2319 (2019), 25 because the charge was predicated on § 924(c)’s residual clause. The Texas court rejected the claim, 26 concluding that Petitioner’s conviction relied on the “elements clause” of § 924(c)(3), not the residual 27 clause, and Davis left intact the elements clause of § 924(c)(3). Id. at 8. The court noted that the only 28 1 evidence at trial of any crime of violence for the two challenged counts was of attempted murder, and 2 attempted murder qualified as a crime of violence under the elements clause. Id. 3 For the same reasons, the Texas court rejected Petitioner’s claim that his conviction for 4 violation of 18 U.S.C. § 1952(a)(2) (“Travel Act count”) was predicated on the residual clause and 5 therefore ran afoul of Davis. The court noted that the term “crime of violence” was defined in the 6 same manner as § 924(c)(3)(A) as “an offense that has as an element the use, attempted use, or 7 threatened use of physical force against the person or property of another.” Id. The Texas court 8 rejected Petitioner’s claims, concluding that Petitioner could not prove that his convictions relied on 9 the residual clause invalidated by Davis. Id. at 9. 10 On March 20, 2023, Petitioner filed the instant habeas petition. He contends that he should be 11 permitted to collaterally attack his conviction via § 2241, because the law has changed since his 12 previous § 2255 motion was denied, and he does not have an adequate or effective remedy to present 13 his claim. Petitioner raises substantially the same claims he raised in his most recent § 2255 motion, 14 but he claims that certain legal impediments and precedents were either cleared or overruled by 15 intervening laws such that his claims deserve another look. For reasons discussed below, the Court 16 finds that Petitioner fails to satisfy the savings clause, and the petition should be dismissed for lack of 17 jurisdiction. 18 DISCUSSION 19 I. Lack of Jurisdiction 20 A federal prisoner who wishes to challenge the validity or constitutionality of his federal 21 conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence 22 under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also Stephens v. 23 Herrera, 464 F.3d 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007). In such cases, only the 24 sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. Generally, a prisoner may not collaterally 25 attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 26 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; 27 see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980). 28 1 In contrast, a prisoner challenging the manner, location, or conditions of that sentence's 2 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district where 3 the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65 4 (9th Cir.2000) (per curiam). “The general rule is that a motion under 28 U.S.C. § 2255 is the 5 exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions 6 on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” 7 Stephens, 464 F.3d at 897 (citations omitted). 8 An exception exists by which a federal prisoner may seek relief under § 2241 if he can 9 demonstrate the remedy available under § 2255 to be "inadequate or ineffective to test the validity of 10 his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting 28 U.S.C. § 2255); 11 see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a very narrow 12 exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.2003). The remedy under § 2255 usually 13 will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or 14 because a remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964) 15 (a court’s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 16 F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition 17 inadequate). 18 The Ninth Circuit has held that Section 2255 provides an ‘inadequate and ineffective’ remedy 19 (and thus that the petitioner may proceed under Section 2241 when the petitioner: (1) makes a claim of 20 actual innocence; and, (2) has never had an ‘unobstructed procedural shot’ at presenting the claim. 21 Stephens, 464 F.3d at 898. The burden is on the petitioner to show that the remedy is inadequate or 22 ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir.1963). Here, Petitioner fails to satisfy 23 the savings clause because he fails to present a claim of actual innocence and he fails to demonstrate 24 that he has never had an unobstructed procedural opportunity to present his claim. 25 A. Actual Innocence 26 In the Ninth Circuit, a claim of actual innocence for purposes of the Section 2255 savings 27 clause is tested by the standard articulated by the United States Supreme Court in Bousley v. United 28 States, 523 U.S. 614 (1998). Stephens, 464 U.S. at 898. In Bousley, the Supreme Court explained 1 that, “[t]o establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is 2 more likely than not that no reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 3 (internal quotation marks omitted). Actual innocence means factual innocence, not mere legal 4 insufficiency. Id. 5 Here, Petitioner does not challenge his actual conviction. He instead takes issue with the 6 sentence, specifically, the sentencing provisions in §§ 924(c)(1)(A)(iii) and 924(c)(1)(C)(i). He 7 alleges that the predicates used to substantiate the sentences should not have qualified and were 8 erroneously used to calculate his sentence. Claims of sentencing error have nothing to do with factual 9 innocence of the crimes of conviction and, therefore, are insufficient to invoke the savings clause. See 10 Frank v. Banks, 2011 WL 3477096, at *3–5 (C.D. Cal. July 15, 2011), adopted, 2011 WL 3476602 11 (C.D. Cal. Aug. 9, 2011) (agreeing that “every circuit” to have addressed the issue “has concluded that 12 the savings clause embodied in § 2255(e) requires a claim of actual innocence directed to the 13 underlying conviction, not merely the sentence”); Saikaly v. Smith, 2006 WL 2827690, *1 (E.D. Cal. 14 Sept. 29, 2006) (“Petitioner claims constitutional error in the calculation of his sentence. Sentencing 15 error does not constitute actual innocence ....”); Bousley, 523 U.S. at 623 (a claim of actual innocence 16 requires a showing of factual innocence, not legal insufficiency); Marrero v. Ives, 682 F.3d 1190, 1192 17 (9th Cir. 2012) (the mere assertion of innocence, without a showing of “evidence tending to show that 18 [the petitioner] did not commit the [acts] underlying his convictions,” is insufficient to satisfy the 19 actual innocence standard). Petitioner’s failure to assert a claim of factual innocence alone bars him 20 from qualifying for the § 2255 escape hatch. Muth v. Fondren, 676 F.3d 815, 819 (9th Cir. 2012) 21 (availability of § 2255 escape hatch foreclosed where petition fails to make plausible showing of 22 actual innocence). 23 B. Unobstructed Procedural Opportunity 24 The remedy under § 2255 usually will not be deemed inadequate or ineffective merely because 25 a prior § 2255 motion was denied, or because a remedy under that section is procedurally barred. See 26 Ivy, 328 F.3d at 1060 (“In other words, it is not enough that the petitioner is presently barred from 27 raising his claim of innocence by motion under § 2255. He must never have had the opportunity to 28 raise it by motion.”). 1 Here, Petitioner has had and potentially still has unobstructed procedural opportunities to 2 present his claims. First, Petitioner relies upon Davis for his claims; however, the Texas court has 3 already addressed Davis in his most recent § 2255 action and noted it has no application in his case. 4 See Castillo-Chavez, Case No. 5:16-cv-00173. To the extent Petitioner contends the Texas court 5 committed “obvious clear error that went unnoticed by trial counsel and the sentencing court” (Doc. 1 6 at 11), such claim could and should have been raised in his various actions before this case. Petitioner 7 offers no reason why a clear and obvious error could not have been raised at an earlier date. 8 Moreover, if the error is manifest, Petitioner does not state whether he pursued an appeal or motion for 9 reconsideration concerning the error, and if not, why he failed to do so. 10 Petitioner also claims that the legal landscape has changed such that his claims are now 11 cognizable. However, Petitioner does not demonstrate that the legal landscape changed in any way 12 material to his case. He cites first to United States v. Taylor, 142 S.Ct. 2015 (2022), but Taylor is 13 inapplicable to his case. In Taylor, the Supreme Court determined that Hobbs Act robbery does not 14 qualify as a “crime of violence” under the elements clause of § 924(c)(3)(A). Petitioner was not 15 convicted of Hobbs Act robbery. He also cites to Borden v. United States, 141 S.Ct. 1817 (2021). In 16 Borden, the Supreme Court determined that a criminal offense that requires only a mens rea of 17 recklessness cannot count as a “violent felony” under the elements clause of the Armed Career 18 Criminal Act. Id. at 1834. Borden is inapplicable because Petitioner was not convicted of a criminal 19 offense that required only a mens rea of recklessness. Petitioner next cites to Jones v. Hendrix, 8 F.4th 20 683 (8th Cir. 2021), cert. granted, 142 S.Ct. 2706, a case that has not yet been decided by the Supreme 21 Court. Petitioner does not state how Jones would alter the outcome of his case, and the Court cannot 22 find any applicability here. In Jones, the Eighth Circuit held that § 2255’s remedy is not inadequate or 23 ineffective simply because there has been a change in caselaw and the petitioner is subject to a 24 successive-motions bar. Id. at 686-87. The Supreme Court may have granted certiorari to resolve the 25 split amongst the circuits. In any event, the outcome will not aid Petitioner here. Finally, Petitioner 26 cites to United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). Wheeler is a Fourth Circuit case and 27 offers only persuasive authority in this Circuit. The case was also decided in 2018, and was available 28 to Petitioner in any of his several pleadings and actions filed thereafter. 1 Based on the foregoing, the Court concludes that Petitioner has not demonstrated that Section 2 2255 constitutes an “inadequate or ineffective” remedy for raising his claims. Section 2241 is not the 3 proper statute for raising Petitioner's claims, and the petition should be summarily dismissed for lack 4 of jurisdiction. 5 ORDER 6 IT IS HEREBY ORDERED that the Clerk of the Court is DIRECTED to assign a United 7 States District Judge to this case. 8 RECOMMENDATION 9 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 10 DISMISSED for lack of jurisdiction. 11 This Findings and Recommendation is submitted to the United States District Court Judge 12 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 13 Local Rules of Practice for the United States District Court, Eastern District of California. Within 14 twenty-one (21) days after being served with a copy of this Findings and Recommendation, Petitioner 15 may file written objections with the Court and serve a copy on all parties. Such a document should be 16 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The Court will then 17 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that 18 failure to file objections within the specified time may waive the right to appeal the Order of the 19 District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 IT IS SO ORDERED.

22 Dated: March 24, 2023 /s/ Sheila K. Oberto . 23 UNITED STATES MAGISTRATE JUDGE

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