(HC) Clearman v. Trate

• Court: District Court, E.D. California
• Decided: May 22, 2023
• Docket: 1:22-cv-00444
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK ANTHONY CLEARMAN, Case No. 1:22-cv-00444-HBK (HC) 12 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO DISMISS 1 13 v. (Doc. No. 7) 14 B.M. TRATE, 15 Respondent. 16 17 18 19 Petitioner Mark Anthony Clearman (“Petitioner”), a federal prisoner, initiated this action 20 by filing a pro se petition for writ of habeas corpus under 28 U.S.C. § 2241 while incarcerated in 21 Atwater Penitentiary, located in Merced County, California, which is within the venue and 22 jurisdiction of this Court. (Doc. No. 1, “Petition”). The Petition raises two grounds for relief 23 that, taken together, advance a claim that Petitioner is actually innocent of his mandatory 24 minimum life sentence because his prior state drug offense, known as a “wobbler” under 25 California law, is no longer a qualifying predicate felony conviction for the purposes of sentence 26 enhancement under 21 U.S.C. § 841(b) and § 851. Respondent filed a Motion to Dismiss the 27 1 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. 28 § 636(c)(1). (Doc. No. 14). 1 Petition on the basis that the Court lacked jurisdiction to review the § 2241 petition because the 2 “escape hatch” of 28 U.S.C. § 2255 does not apply. (Doc. No. 7, “Motion”). On August 29, 3 2022, Petitioner filed an opposition to the Motion. (Doc. No. 12). For the reasons set forth more 4 fully herein, the Court grants Respondent’s Motion to Dismiss. 5 I. BACKGROUND 6 A. Procedural History 7 Petitioner, a federal prisoner, is serving a mandatory life sentence, after a jury trial, for 8 conspiracy to distribute phencyclidine (“PCP”) in violation of §§ 841(a)(1) and 841(b)(1)(A), 9 entered by the United States District Court for the Western District of Missouri (“WDMO”). See 10 United States v. Edwards, et al., 4:91-cr-00089-BCW-3, Crim. Doc. Nos. 226, 579 (W.D. Mo.).2 11 Based on two prior felony drug convictions, including a 1981 California state conviction for 12 possession of cocaine, Petitioner was sentenced to life imprisonment pursuant to 21 U.S.C. § 851 13 and § 841(b). Id. at 499, 702. Petitioner’s conviction and sentence were affirmed on direct 14 appeal by the United States Court of Appeals for the Eighth Circuit. Id. at Crim. Doc. No. 799; 15 United States v. Mabry, 3 F.3d 244, 146-47 (8th Cir. 1993) (“California court records establish 16 that, whether or not Clearman negotiated a misdemeanor-level punishment by pleading guilty, he 17 was convicted of a drug felony under California law that is a proper predicate offense under 21 18 U.S.C. 21 U.S.C. § 841(b)”). 19 On April 8, 1998, the WDMO denied Petitioner’s motion to vacate his conviction and 20 sentence under 28 U.S.C. § 2255. Clearman v. United States, 4:97-cv-00648-CV-W-DW (W.D. 21 Mo.). From 2007 to the present, Petitioner has filed multiple unsuccessful post-conviction 22 motions largely asserting, as he does here, that one of his prior felony conviction is no longer 23 defined as a “felony drug offense” and therefore does not qualify for the purpose of sentence 24 enhancement under 21 U.S.C. § 851 and § 841(b). See Clearman v. Norwood, No. 2:07-00023- 25 AG-JWJ (C.D. Cal. Feb. 26, 2007) (construing Petitioner’s petition for writ of habeas corpus 26 under 28 U.S.C. § 2241 as a motion pursuant to § 2255, and transferring case to WDMO); See 27 2 The undersigned cites to the record in Petitioner’s underlying WDMO criminal case as “Crim. Doc. No. 28 _.”. 1 Clearman v. United States, No. 07-cv-00187-CV-W-DW (W.D. Mo. Mar. 16, 2007) (denying § 2 2255 motion as unauthorized successive claim); Clearman v. United States, No. 07-2051 (8th Cir. 3 2007) (affirming denial of unauthorized successive claim); Crim Doc. No. 1021 (denying 4 Petitioner’s motion for relief pursuant to FRCP 60(b)(6) filed in 2012 because Petitioner is 5 “seeking to collaterally attack his sentence and thus his motion amounts to a successive § 2255 6 motion”); Crim. Doc. Nos. 1027, 1036, 1038 (denying Petitioner’s motion to reduce his sentence 7 under U.S.C. § 3582(c) as he failed to provide any statutory authority that would permit the 8 district court to modify his final sentence). 9 Most recently, with appointed counsel, Petitioner filed an amended motion for 10 compassionate release under § 3582 in the WDMO court of conviction on March 26, 2021. Crim. 11 Doc. No. 1049. Petitioner argued that pursuant to the First Step Act, the mandatory minimum 12 sentence he would face under § 841(b)(1)(A) upon the filing of a § 851 notice is 25 years, and his 13 “prior California conviction for possession of cocaine no longer qualifies as a predicate offense 14 for a number of reasons: the offense did not include any intent to distribute, manufacture, or 15 deliver a controlled substance; [Petitioner] did not serve at least 12 months in custody for the 16 offense; the offense has been reclassified by the state of California as a misdemeanor offense.” 17 Id. The WDMO court of conviction denied the motion on the merits, specifically finding “there 18 is no legal basis for amending Defendant’s sentence when changes in sentencing laws are not 19 retroactive”; and the Eighth Circuit affirmed. Crim. Doc. Nos. 1055, 1059. 20 II. APPLICABLE LAW AND ANALYSIS 21 A. § 2241 Petition 22 Generally, a § 2241 petition is reserved for federal prisoners challenging “the manner, 23 location, or conditions of a sentence’s execution.” Harrison v. Ollison, 519 F.3d 952, 956 (9th 24 Cir. 2008). Federal prisoners seeking to challenge the legality of their confinement must do so 25 through a § 2255 motion. See Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). In limited 26 circumstances, federal prisoners may challenge the legality of their confinement through a § 2241 27 petition by utilizing the so-called “savings clause” or “escape hatch” provision of § 2255(e). Id. 28 at 1192. This portal permits a federal prisoner to challenge the legality of confinement if he can 1 establish that the remedy provided under § 2255 is “inadequate or ineffective to test the legality 2 of his detention.” 28 U.S.C. § 2255(e). To demonstrate a remedy is “inadequate or ineffective” a 3 petitioner must: (1) make a claim of actual innocence, and (2) show that he has not had an 4 “unobstructed procedural shot at presenting that claim.” Shepherd v. Unknown Party, Warden, 5 FCI Tucson, 54 F.4th 1075, 1076 (9th Cir. 2021). A prisoner cannot circumvent the limitations 6 imposed on successive petitions by restyling his petition as one under § 2241. Stephens v. 7 Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) 8 (per curiam) (petitioner attempted to circumvent AEDPA’s successive motion provisions by 9 bringing § 2255 claims in a § 2241 petition). 10 A factual claim of actual innocence requires a petitioner to “demonstrate that, in light of 11 all the evidence, it is more likely than not that no reasonable juror would have convicted him.” 12 Stephens, 464 F.3d at 898 (citing Bousley v. United States, 523 U.S. 614 (1998)). Here, Petitioner 13 does not dispute the validity of his underlying conviction for conspiracy to distribute PCP. 14 Instead, Petitioner relies on Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020) as support for his 15 contention that he is actually innocent because at the time of his sentencing the Eighth Circuit had 16 not “yet adopted . . . a criterion used to reduce some offenses known as wobblers from [a] felony 17 offense to a misdemeanor,” and therefore his predicate “wobbler” offense no longer qualifies as a 18 “serious drug offense” for mandatory sentence enhancement under 21 U.S.C. § 841(b) and 19 § 851.3 (Doc. No. 1 at 3, 7). Petitioner also argues the prior state offense “was rendered to be a 20 misdemeanor” at the time of sentencing because he was sentenced to 90 days in jail, a fine, and 21 probation; and his prior offense is now classified “strictly” as a misdemeanor. (Id. at 7-9; Doc. 22 No. 12 at 10); See Cal. Health & Safety Code § 11350(a) (every person convicted of the offense 23 3 “Under California law, certain offenses may be classified as either felonies or misdemeanors. These 24 crimes are known as “wobblers.” . . . [A] ‘wobbler’ is presumptively a felony and remains a felony except when the discretion is actually exercised to make the crime a misdemeanor.” Ewing v. California, 538 25 U.S. 11, 16-17 (2003). To the extent discernable, it appears the “criterion” Petitioner argues was “adopted” by the Eighth Circuit references California Penal Code § 17(b), which sets out guidance for how 26 a “wobbler” offense may be classified. See United States v. Atkins, 2017 WL 2652873, at *4 (N.D. Cal. June 19, 2017) (California Penal Code § 17(b) “permits the conviction to be ‘wobbled’ down to a 27 misdemeanor” in accordance with certain terms); United States v. Diaz-Argueta, 564 F.3d 1047, 1049-50 (9th Cir. 2009) (California Penal Code § 17(b) “distinguishes between misdemeanor and felony 28 convictions under wobbler statutes”). 1 “shall be punished by imprisonment in a county jail of not more than one year”). 2 However, as noted by Respondent, “[i]n Allen, the Ninth Circuit found that Petitioner 3 Allen ‘ha[d] made a claim of actual innocence that permits jurisdiction over his § 2241 petition’ 4 because Petitioner Allen showed ‘retroactive’ [Supreme Court] cases . . . rendered his prior state 5 conviction non-qualifying for sentence enhancement.” (Doc. No. 7 at 5 (citing Mathis v. United 6 States, 579 U.S. 500 (2016), and Descamps v. United States, 570 U.S. 254 (2013)). Here, in an 7 attempt to support his argument that his predicate conviction no longer qualifies as a “serious 8 drug felony” such that it would qualify for sentence enhancement under § 841(b) and § 851, 9 Petitioner cites a string of Eighth Circuit cases decided after his direct appeal and initial § 2255 10 motion that he claims “utilize[] California’s Cal. Penal Code §17 to validate prior California’s 11 [sic] State conviction for enhancement of sentence purposes.” (Doc. No. 1 at 10-11 (citing, e.g., 12 United States v. Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir. 2002) (affirming district court 13 conclusion that defendant’s prior conviction was a felony under California law on direct appeal); 14 United States v. Viezcas-Soto, 562 F.3d 903 (8th Cir. 2009) (finding on direct appeal that 15 government failed to prove by preponderance of the evidence that defendant’s prior offense was a 16 felony because it was converted to a misdemeanor within the meaning of Cal. Penal Code 17 § 17(b), and remanding for resentencing); United States v. Adams, 716 F.3d 1066 (8th Cir. 2013) 18 (affirming on direct appeal that prior convictions for wobbler offenses qualified as felonies under 19 the Armed Career Criminal Act because the convictions did not result in judgment and neither 20 court declared them to be misdemeanors); United States v. McPherson, 2017 WL 2879794 (N.D. 21 Ia. July 6, 2017) (denying motion to dismiss indictment because predicate “wobbler” offense 22 constitutes a felony for the purposes of §922(g)(1)). 23 Here, Petitioner fails to cite retroactive federal law that would render his prior conviction 24 under a California “wobbler” statute non-qualifying for sentence enhancement under 25 § 841(b) and § 851 on collateral review. Moreover, to the extent Petitioner relies on a subsequent 26 reclassification of his predicate offense from a felony to “strictly” a misdemeanor, it is well- 27 settled that a prior conviction qualifies as a “felony drug offense” for the purposes of sentence 28 enhancement under 21 U.S.C. § 841(b) if it was punishable as a felony at the time of conviction. 1 See United States v. Santillan, 944 F.3d 731, 733-34 (8th Cir. 2019) (citing United States v. 2 Davis, 838 F.3d 968, 973-74 (9th Cir. 2016) (“the question posed by § 841(b)(1)(A) is whether 3 the defendant was previously convicted, not the particulars of how state law later might have 4 permitted relief from the defendant’s state conviction.”)). As argued by Respondent, “Petitioner 5 fails his burden to establish post-1992 retroactive state and or federal law changed the elements 6 for his 1981 California state felony offense nunc pro tunc for purposes of 21 U.S.C. § 841(b) and 7 § 851 application. Even if present day criminal offenders (with similar prior state felony 8 conviction) may not suffer similar sentencing enhancement under 21 U.S.C. § 841(b) and § 851, 9 Petitioner fails his burden to show his 1981 conviction has retroactively been converted to a non- 10 qualifying felony for purposes of 21 U.S.C. § 841(b) and § 851 sentencing enhancement.” (Doc. 11 No. 7 at 6). Consequently, Petitioner fails to make a claim of actual innocence as required by the 12 escape hatch provision of § 2255(e). 13 Petitioner additionally argues he has not had an unobstructed procedural shot to raise his 14 claim because “supporting precedence [sic] in the district of conviction ([Eighth Circuit]) became 15 available after movants [sic] direct appeal in 1993, and after movants [sic] § 2255 in 1998.” 16 (Doc. No. 1 at 9 (referencing case law cited supra)). However, because Petitioner has failed to 17 demonstrate he is actually innocent, the Court need not address the “unobstructed procedural 18 shot” prong of the escape hatch. See Wilson v. Thompson, 2022 WL 815334, at *4 (E.D. Cal. 19 Mar. 17, 2022) (citing Nichols v. Ciolli, 2021 WL 3563092, at *3 (E.D. Cal. Aug. 12, 2021)); 20 Renderos v. Langford, 2019 WL 1789879, at *4 (C.D. Cal. Apr. 24, 2019); Nguyen v. Babcock, 21 2012 WL 3756864, at *2 (E.D. Cal. Aug. 28, 2012) (“The court need not address whether 22 petitioner had an unobstructed procedural shot at pursuing his claim because, even assuming that 23 he did not, he has failed to show that he is actually innocent.”). Moreover, as discussed supra, the 24 Eighth Circuit has considered, and denied, multiple post-conviction challenges by Petitioner 25 asserting a similar version of the argument that his “wobbler” state law conviction should not 26 qualify as a predicate felony offense for the purpose of enhanced sentencing under 21 U.S.C. § 27 841(b) and § 851. 28 Based on the foregoing, Petitioner has failed to satisfy the escape hatch criteria of § 2255, 1 | and this court lacks jurisdiction over the § 2241 petition. Because Petitioner has not been granted 2 | leave by the Court of Appeals to file a successive § 2255 motion, it would be futile to transfer the 3 | § 2241 petition to the WDMO court of conviction for consideration as a § 2255 motion. 4 Accordingly, it is ORDERED: 5 1. Respondent’s Motion to Dismiss (Doc. No. 7) is GRANTED and the Petition is 6 DISMISSED. 7 2. The Clerk of Court is directed to terminate any pending motions and close this case. 8 | Dated: _ May 22, 2023 law Th. Doareh Hack 10 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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