1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GERARDO CASTILLO-CHAVEZ, ) Case No.: 1:24-cv-00037-SKO (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATION TO 14 ) DISMISS PETITION FOR WRIT OF HABEAS 15 WARDEN, USP ATWATER, ) CORPUS ) 16 Respondent. ) [TWENTY-ONE 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. He is in the custody of the Bureau of Prisons at the 20 United States Penitentiary in Atwater, California. He filed the instant federal petition on January 8, 21 2024, challenging his conviction and sentence pursuant to 28 U.S.C. § 2241. (Doc. 1.) For reasons that 22 follow, the Court finds that it lacks jurisdiction to consider his claims. Therefore, the Court will 23 recommend the petition be SUMMARILY DISMISSED. 24 I. PRELIMINARY REVIEW 25 Habeas corpus petitions are subject to summary dismissal pursuant to Rule 4 of the Rules 26 Governing Section 2254 Cases in the United States District Courts. The provisions of Rule 4, which 27 are applicable to § 2241 petitions under Rule 1(b), provide in pertinent part: “If it plainly appears from 28 the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the 1 judge must dismiss the petition and direct the clerk to notify the petitioner.” The Advisory Committee 2 Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its 3 own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an answer to the 4 petition has been filed. 5 II. BACKGROUND 6 On October 19, 2012, Petitioner was found guilty and sentenced in the United States District 7 Court for the Southern District of Texas for conspiracy to possess cocaine and marijuana with intent to 8 distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. (Doc. 1 at 2.) 9 On January 9, 2024, Petitioner filed the instant habeas petition in this Court. Petitioner 10 contends that he did not have consular representation during his trial and sentencing. 11 III. 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. Jones v. Hendrix, 599 U.S. ___, ___, S.Ct. ___, 2023 WL 4110233, at *3 15 (2023); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also Stephens v. Herrera, 464 F.3d 16 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007). In such cases, only the sentencing court 17 has jurisdiction. Tripati, 843 F.2d at 1163; Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). 18 Generally, a prisoner may not collaterally attack a federal conviction or sentence by way of a petition 19 for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Jones, 2023 WL 4110233, at *3; Grady v. 20 United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. 21 Flores, 616 F.2d 840, 842 (5th Cir.1980). 22 In contrast, a prisoner challenging the manner, location, or conditions of that sentence’s 23 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district where 24 the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez, 204 F.3d at 865. “The general rule 25 is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test 26 the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be 27 avoided through a petition under 28 U.S.C. § 2241.” Stephens, 464 F.3d at 897 (citations omitted). 28 1 An exception exists by which a federal prisoner may seek relief under § 2241, referred to as the 2 “savings clause” or “escape hatch” of § 2255. Jones, 2023 WL 4110233, at *4; Harrison v. Ollison, 3 519 F.3d 952, 956 (9th Cir. 2008); Hernandez, 204 F.3d at 864-65. “[T]he saving clause preserves 4 recourse to § 2241 in cases where unusual circumstances make it impossible or impracticable to seek 5 relief in the sentencing court, as well as for challenges to detention other than collateral attacks on a 6 sentence.” Jones, 2023 WL 4110233, at *8. “[I]f - and only if – § 2255’s remedy by motion is 7 ‘inadequate or ineffective to test the legality of his detention’” may a prisoner proceed under § 2241. 8 Jones, 2023 WL 4110233, at *4 (quoting 28 U.S.C. § 2255(e)); Marrero v. Ives, 682 F.3d 1190, 1192 9 (9th Cir. 2012). In the Ninth Circuit, § 2255 constitutes an “inadequate and ineffective” remedy, and 10 thus the petitioner could proceed under § 2241, when the petitioner: (1) makes a claim of actual 11 innocence; and, (2) has never had an ‘unobstructed procedural shot’ at presenting the claim. Ivy v. 12 Pontesso, 328 F.3d 1057, 1059-1060 (9th Cir. 2003); Harrison, 519 F.3d at 959; Stephens, 464 F.3d at 13 898; accord Marrero, 682 F.3d at 1192. 14 The Supreme Court recently issued its opinion in Jones v. Hendrix holding “that § 2255(e)’s 15 saving clause does not permit a prisoner asserting an intervening change in statutory interpretation to 16 circumvent AEDPA’s restrictions on second or successive § 2255 motions by filing a § 2241 petition.” 17 2023 WL 4110233, at *5. “[W]here intervening Supreme Court authority is clearly irreconcilable with 18 our prior circuit authority,” the Ninth Circuit has held that “district courts should consider themselves 19 bound by the intervening higher authority and reject the prior opinion of this court as having been 20 effectively overruled.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). With respect to 21 claims that are not based on an intervening change in statutory interpretation governed by Jones, it is 22 unclear to what extent, if at all, this test has been abrogated by Jones. 23 Here, Petitioner contends that he did not have consular assistance pursuant to Article 36 of the 24 Geneva Convention during trial and through sentencing. He claims defense counsel rendered 25 ineffective assistance in several ways, including recommending going to trial rather than negotiating a 26 plea deal. Had he the assistance of a Mexican consulate, he claims, he would have insisted on a 27 negotiated plea deal.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GERARDO CASTILLO-CHAVEZ, ) Case No.: 1:24-cv-00037-SKO (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATION TO 14 ) DISMISS PETITION FOR WRIT OF HABEAS 15 WARDEN, USP ATWATER, ) CORPUS ) 16 Respondent. ) [TWENTY-ONE 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. He is in the custody of the Bureau of Prisons at the 20 United States Penitentiary in Atwater, California. He filed the instant federal petition on January 8, 21 2024, challenging his conviction and sentence pursuant to 28 U.S.C. § 2241. (Doc. 1.) For reasons that 22 follow, the Court finds that it lacks jurisdiction to consider his claims. Therefore, the Court will 23 recommend the petition be SUMMARILY DISMISSED. 24 I. PRELIMINARY REVIEW 25 Habeas corpus petitions are subject to summary dismissal pursuant to Rule 4 of the Rules 26 Governing Section 2254 Cases in the United States District Courts. The provisions of Rule 4, which 27 are applicable to § 2241 petitions under Rule 1(b), provide in pertinent part: “If it plainly appears from 28 the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the 1 judge must dismiss the petition and direct the clerk to notify the petitioner.” The Advisory Committee 2 Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its 3 own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an answer to the 4 petition has been filed. 5 II. BACKGROUND 6 On October 19, 2012, Petitioner was found guilty and sentenced in the United States District 7 Court for the Southern District of Texas for conspiracy to possess cocaine and marijuana with intent to 8 distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. (Doc. 1 at 2.) 9 On January 9, 2024, Petitioner filed the instant habeas petition in this Court. Petitioner 10 contends that he did not have consular representation during his trial and sentencing. 11 III. 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. Jones v. Hendrix, 599 U.S. ___, ___, S.Ct. ___, 2023 WL 4110233, at *3 15 (2023); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also Stephens v. Herrera, 464 F.3d 16 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007). In such cases, only the sentencing court 17 has jurisdiction. Tripati, 843 F.2d at 1163; Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). 18 Generally, a prisoner may not collaterally attack a federal conviction or sentence by way of a petition 19 for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Jones, 2023 WL 4110233, at *3; Grady v. 20 United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. 21 Flores, 616 F.2d 840, 842 (5th Cir.1980). 22 In contrast, a prisoner challenging the manner, location, or conditions of that sentence’s 23 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district where 24 the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez, 204 F.3d at 865. “The general rule 25 is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test 26 the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be 27 avoided through a petition under 28 U.S.C. § 2241.” Stephens, 464 F.3d at 897 (citations omitted). 28 1 An exception exists by which a federal prisoner may seek relief under § 2241, referred to as the 2 “savings clause” or “escape hatch” of § 2255. Jones, 2023 WL 4110233, at *4; Harrison v. Ollison, 3 519 F.3d 952, 956 (9th Cir. 2008); Hernandez, 204 F.3d at 864-65. “[T]he saving clause preserves 4 recourse to § 2241 in cases where unusual circumstances make it impossible or impracticable to seek 5 relief in the sentencing court, as well as for challenges to detention other than collateral attacks on a 6 sentence.” Jones, 2023 WL 4110233, at *8. “[I]f - and only if – § 2255’s remedy by motion is 7 ‘inadequate or ineffective to test the legality of his detention’” may a prisoner proceed under § 2241. 8 Jones, 2023 WL 4110233, at *4 (quoting 28 U.S.C. § 2255(e)); Marrero v. Ives, 682 F.3d 1190, 1192 9 (9th Cir. 2012). In the Ninth Circuit, § 2255 constitutes an “inadequate and ineffective” remedy, and 10 thus the petitioner could proceed under § 2241, when the petitioner: (1) makes a claim of actual 11 innocence; and, (2) has never had an ‘unobstructed procedural shot’ at presenting the claim. Ivy v. 12 Pontesso, 328 F.3d 1057, 1059-1060 (9th Cir. 2003); Harrison, 519 F.3d at 959; Stephens, 464 F.3d at 13 898; accord Marrero, 682 F.3d at 1192. 14 The Supreme Court recently issued its opinion in Jones v. Hendrix holding “that § 2255(e)’s 15 saving clause does not permit a prisoner asserting an intervening change in statutory interpretation to 16 circumvent AEDPA’s restrictions on second or successive § 2255 motions by filing a § 2241 petition.” 17 2023 WL 4110233, at *5. “[W]here intervening Supreme Court authority is clearly irreconcilable with 18 our prior circuit authority,” the Ninth Circuit has held that “district courts should consider themselves 19 bound by the intervening higher authority and reject the prior opinion of this court as having been 20 effectively overruled.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). With respect to 21 claims that are not based on an intervening change in statutory interpretation governed by Jones, it is 22 unclear to what extent, if at all, this test has been abrogated by Jones. 23 Here, Petitioner contends that he did not have consular assistance pursuant to Article 36 of the 24 Geneva Convention during trial and through sentencing. He claims defense counsel rendered 25 ineffective assistance in several ways, including recommending going to trial rather than negotiating a 26 plea deal. Had he the assistance of a Mexican consulate, he claims, he would have insisted on a 27 negotiated plea deal. He asserts that he did not request assistance from the Mexican consulate during 28 trial because he only recently became aware of his rights. 1 To the extent the Ninth Circuit’s test is valid after Jones, as to whether a petitioner may 2 proceed via the savings clause when raising a claim not based on a change in statutory interpretation, 3 Petitioner fails to satisfy the savings clause. First, he fails to demonstrate that he has never had an 4 unobstructed procedural opportunity to present his claim. He states he has already pursued a motion 5 under § 2255 in the sentencing court and that a second motion will be dismissed as successive, but this 6 is insufficient. See Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s denial of a prior § 2255 motion is 7 insufficient to render § 2255 inadequate). In addition, that Petitioner only now discovered the basis for 8 his claim does not render his remedy under § 2255 inadequate or ineffective. The legal basis for his 9 claim was available during trial and during his first § 2255 motion, and Petitioner fails to show that he 10 did not have an unobstructed procedural opportunity to present it. 11 Second, Petitioner fails to make a valid claim of actual innocence. In the Ninth Circuit, a claim 12 of actual innocence for purposes of Section 2255’s savings clause is tested by the standard articulated 13 by the United States Supreme Court in Bousley v. United States, 523 U.S. 614 (1998). Stephens, 464 14 U.S. at 898. In Bousley, the Supreme Court explained that, “[t]o establish actual innocence, petitioner 15 must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror 16 would have convicted him.” Bousley, 523 U.S. at 623 (internal quotation marks omitted). Petitioner 17 bears the burden of proof on this issue by a preponderance of the evidence, and he must show not just 18 that the evidence against him was weak, but that it was so weak that “no reasonable juror” would have 19 convicted him. Lorentsen, 223 F.3d at 954. Petitioner makes no claim of being factually innocent of 20 his crimes. He instead faults defense counsel for going to trial instead of obtaining a negotiated plea 21 deal. Therefore, the instant § 2241 petition does not fit within the exception to the general bar against 22 using Section 2241 to collaterally attack a conviction or sentence imposed by a federal court. The 23 Court finds it lacks jurisdiction under § 2241 and will recommend the petition be dismissed. 24 IV. ORDER 25 IT IS HEREBY ORDERED that the Clerk of the Court is DIRECTED to assign a United 26 States District Judge to this case. 27 28 1 V. RECOMMENDATION 2 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 3 DISMISSED for lack of jurisdiction. 4 This Findings and Recommendation is submitted to the United States District Court Judge 5 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 6 Local Rules of Practice for the United States District Court, Eastern District of California. Within 7 twenty-one (21) days after being served with a copy of this Findings and Recommendation, Petitioner 8 may file written objections with the Court. Such a document should be captioned “Objections to 9 Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate 10 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file 11 objections within the specified time may waive the right to appeal the Order of the District Court. 12 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED.
15 Dated: January 10, 2024 /s/ Sheila K. Oberto . 16 UNITED STATES MAGISTRATE JUDGE
17 18 19 20 21 22 23 24 25 26 27 28