1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRUZ INIGUEZ, No. 2:19-cv-1318-EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PAUL THOMPSON, Warden, 15 Respondent. 16 17 Petitioner is a federal prisoner proceeding without counsel in this petition for writ of 18 habeas corpus brought under 28 U.S.C. § 2241. ECF No. 1. Respondent has filed a motion to 19 dismiss the petition. ECF No. 9. For the reasons that follow, the motion must be granted. 20 I. Background 21 Petitioner is confined in federal prison at FCI Herlong. ECF No. 1 at 1. He was convicted 22 in 2000 in the United States District Court for the Central District of California on a variety of 23 drug distribution charges and, following some appellate process not relevant here, received a 24 sentence of 360 months’ imprisonment on four counts, to be served concurrently. Id. at 11. 25 Petitioner claims that his sentence was enhanced under a part of 21 U.S.C. § 841(b)(1)(C) that 26 provides for enhancement where “death or serious bodily injury results from the use of” the 27 distributed drugs. Id. at 18. 28 ///// 1 Petitioner filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. 2 § 2255 in 2007; it was denied the following year. Id. at 11-12. In 2014, the United States 3 Supreme Court decided Burrage v. United States, 571 U.S. 204, holding that, “at least where use 4 of the drug distributed by the defendant is not an independently sufficient cause of the victim’s 5 death or serious bodily injury, a defendant cannot be liable under the penalty enhancement 6 provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” 7 Id. at 218-19. Petitioner contends that he is actually innocent of the facts used for the § 841(b)(1) 8 sentence enhancement under Burrage and thus may bring this petition under § 2255(e)’s “savings 9 clause.” 10 Respondent disputes that this court has jurisdiction over the matter. ECF No. 9 at 3-5. 11 Significantly, respondent has produced evidence from petitioner’s sentencing that shows that 12 petitioner’s sentence was not enhanced under the portion of § 841(b)(1)(C) that was addressed by 13 Burrage, because there was no finding that petitioner had distributed drugs that contributed to 14 someone’s death. United States v. Cruz Iniguez, C.D. Cal. Case No. 8:98-cr-00166-CJC, ECF 15 No. 273 (transcript of petitioner’s October 28, 2005 sentencing hearing, hereinafter “Sentencing 16 Transcript”) at 52-53, 56-60. Instead, petitioner’s sentence was enhanced under another provision 17 in the same subsection (§ 841(b)(1)(C)) regarding prior convictions. Id. 18 II. Jurisdictional Requirements 19 Before it can reach the merits of the petition, the court is obligated to first determine 20 whether it has jurisdiction over this § 2241 petition under § 2255(e)’s savings clause. Hernandez 21 v. Campbell, 204 F.3d 861, 865-66 (9th Cir. 2000). United States District Courts have authority 22 under 28 U.S.C. § 2241 to grant petitions for writ of habeas corpus to federal prisoners “in 23 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 24 § 2241(c). 25 Ordinarily, a federal prisoner challenging his sentence must do so in a § 2255 motion in 26 the sentencing court. Harrison v. Ollison, 519 F.3d 952, 954 (9th Cir. 2008). Section 2255(e) 27 permits such challenge under § 2241, however, where a § 2255 motion would be “inadequate or 28 ineffective to test the legality of his detention.” A § 2255 motion is “inadequate or ineffective” 1 where the petitioner: (1) claims he is actually innocent and (2) has not had an unobstructed 2 procedural shot at presenting the claim. Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 3 2011). Courts have recently held that petitions challenging pre-Burrage enhancements under 4 § 841(b)(1)(C) can meet both requirements. Harrington v. Ormond, 900 F.3d 246 (6th Cir. 5 2018); Terry v. Shartle, No. CV-15-00107-TUC-CKJ (EJM), 2017 U.S. Dist. LEXIS 78282 (D. 6 Ariz. May 23, 2017). 7 III. Analysis 8 Respondent argues that this court lacks jurisdiction over the petition because petitioner 9 fails to viably claim actual innocence and that petitioner has had multiple prior unobstructed 10 procedural opportunities to challenge his sentence. The court must agree that jurisdiction is 11 lacking. 12 Petitioner’s claim of actual innocence rests entirely on Burrage. There, the U.S. Supreme 13 reviewed 21 U.S.C. § 241(b)(1)(C), which provides, in relevant part:
14 In the case of a controlled substance in schedule I or II, gamma hydroxybutyric acid …, or 1 gram of flunitrazepam, … such person shall be sentenced to a term 15 of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of 16 imprisonment of not less than twenty years or more than life …. If any person commits such a violation after a prior conviction for a felony drug offense has 17 become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of 18 such substance shall be sentenced to life imprisonment …. 19 Thus, the statute sets out four possible sentencing ranges: (1) not more than 20 years if the 20 defendant has no prior felony drug conviction but no death or serious bodily injury resulted from 21 use of the trafficked drug, (2) 20 years to life if the defendant has no prior felony drug conviction 22 and death or serious bodily injury did result from use of the trafficked drug; (3) not more than 30 23 years if the defendant has a prior felony drug conviction but no death or serious bodily injury 24 resulted from use of the trafficked drug; and (4) life imprisonment if the defendant has a prior 25 felony drug conviction and death or serious bodily injury did result from use of the trafficked 26 drug. 27 ///// 28 ///// 1 In Burrage, the defendant had been sentenced to a 20-year mandatory minimum sentence 2 under § 841(b)(1)(C) after an individual who had taken drugs provided by the defendant died 3 (that is, under the second range summarized in the above paragraph). 571 U.S. at 208. The 4 Supreme Court reversed the conviction because it concluded that the “death or serious bodily 5 injury” provisions of the statute were subject to a but-for causation requirement that the district 6 court had not imposed. Id. at 218-19. 7 Burrage says nothing about § 841(b)(1)(C)’s penalty enhancements for prior felony drug 8 convictions. Because the sentencing transcript unequivocally shows that petitioner was given the 9 30-year sentence due to his prior convictions, with no mention by any party or the court of any 10 death resulting from the drugs he sold, Burrage is simply inapplicable to petitioner’s case.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRUZ INIGUEZ, No. 2:19-cv-1318-EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PAUL THOMPSON, Warden, 15 Respondent. 16 17 Petitioner is a federal prisoner proceeding without counsel in this petition for writ of 18 habeas corpus brought under 28 U.S.C. § 2241. ECF No. 1. Respondent has filed a motion to 19 dismiss the petition. ECF No. 9. For the reasons that follow, the motion must be granted. 20 I. Background 21 Petitioner is confined in federal prison at FCI Herlong. ECF No. 1 at 1. He was convicted 22 in 2000 in the United States District Court for the Central District of California on a variety of 23 drug distribution charges and, following some appellate process not relevant here, received a 24 sentence of 360 months’ imprisonment on four counts, to be served concurrently. Id. at 11. 25 Petitioner claims that his sentence was enhanced under a part of 21 U.S.C. § 841(b)(1)(C) that 26 provides for enhancement where “death or serious bodily injury results from the use of” the 27 distributed drugs. Id. at 18. 28 ///// 1 Petitioner filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. 2 § 2255 in 2007; it was denied the following year. Id. at 11-12. In 2014, the United States 3 Supreme Court decided Burrage v. United States, 571 U.S. 204, holding that, “at least where use 4 of the drug distributed by the defendant is not an independently sufficient cause of the victim’s 5 death or serious bodily injury, a defendant cannot be liable under the penalty enhancement 6 provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” 7 Id. at 218-19. Petitioner contends that he is actually innocent of the facts used for the § 841(b)(1) 8 sentence enhancement under Burrage and thus may bring this petition under § 2255(e)’s “savings 9 clause.” 10 Respondent disputes that this court has jurisdiction over the matter. ECF No. 9 at 3-5. 11 Significantly, respondent has produced evidence from petitioner’s sentencing that shows that 12 petitioner’s sentence was not enhanced under the portion of § 841(b)(1)(C) that was addressed by 13 Burrage, because there was no finding that petitioner had distributed drugs that contributed to 14 someone’s death. United States v. Cruz Iniguez, C.D. Cal. Case No. 8:98-cr-00166-CJC, ECF 15 No. 273 (transcript of petitioner’s October 28, 2005 sentencing hearing, hereinafter “Sentencing 16 Transcript”) at 52-53, 56-60. Instead, petitioner’s sentence was enhanced under another provision 17 in the same subsection (§ 841(b)(1)(C)) regarding prior convictions. Id. 18 II. Jurisdictional Requirements 19 Before it can reach the merits of the petition, the court is obligated to first determine 20 whether it has jurisdiction over this § 2241 petition under § 2255(e)’s savings clause. Hernandez 21 v. Campbell, 204 F.3d 861, 865-66 (9th Cir. 2000). United States District Courts have authority 22 under 28 U.S.C. § 2241 to grant petitions for writ of habeas corpus to federal prisoners “in 23 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 24 § 2241(c). 25 Ordinarily, a federal prisoner challenging his sentence must do so in a § 2255 motion in 26 the sentencing court. Harrison v. Ollison, 519 F.3d 952, 954 (9th Cir. 2008). Section 2255(e) 27 permits such challenge under § 2241, however, where a § 2255 motion would be “inadequate or 28 ineffective to test the legality of his detention.” A § 2255 motion is “inadequate or ineffective” 1 where the petitioner: (1) claims he is actually innocent and (2) has not had an unobstructed 2 procedural shot at presenting the claim. Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 3 2011). Courts have recently held that petitions challenging pre-Burrage enhancements under 4 § 841(b)(1)(C) can meet both requirements. Harrington v. Ormond, 900 F.3d 246 (6th Cir. 5 2018); Terry v. Shartle, No. CV-15-00107-TUC-CKJ (EJM), 2017 U.S. Dist. LEXIS 78282 (D. 6 Ariz. May 23, 2017). 7 III. Analysis 8 Respondent argues that this court lacks jurisdiction over the petition because petitioner 9 fails to viably claim actual innocence and that petitioner has had multiple prior unobstructed 10 procedural opportunities to challenge his sentence. The court must agree that jurisdiction is 11 lacking. 12 Petitioner’s claim of actual innocence rests entirely on Burrage. There, the U.S. Supreme 13 reviewed 21 U.S.C. § 241(b)(1)(C), which provides, in relevant part:
14 In the case of a controlled substance in schedule I or II, gamma hydroxybutyric acid …, or 1 gram of flunitrazepam, … such person shall be sentenced to a term 15 of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of 16 imprisonment of not less than twenty years or more than life …. If any person commits such a violation after a prior conviction for a felony drug offense has 17 become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of 18 such substance shall be sentenced to life imprisonment …. 19 Thus, the statute sets out four possible sentencing ranges: (1) not more than 20 years if the 20 defendant has no prior felony drug conviction but no death or serious bodily injury resulted from 21 use of the trafficked drug, (2) 20 years to life if the defendant has no prior felony drug conviction 22 and death or serious bodily injury did result from use of the trafficked drug; (3) not more than 30 23 years if the defendant has a prior felony drug conviction but no death or serious bodily injury 24 resulted from use of the trafficked drug; and (4) life imprisonment if the defendant has a prior 25 felony drug conviction and death or serious bodily injury did result from use of the trafficked 26 drug. 27 ///// 28 ///// 1 In Burrage, the defendant had been sentenced to a 20-year mandatory minimum sentence 2 under § 841(b)(1)(C) after an individual who had taken drugs provided by the defendant died 3 (that is, under the second range summarized in the above paragraph). 571 U.S. at 208. The 4 Supreme Court reversed the conviction because it concluded that the “death or serious bodily 5 injury” provisions of the statute were subject to a but-for causation requirement that the district 6 court had not imposed. Id. at 218-19. 7 Burrage says nothing about § 841(b)(1)(C)’s penalty enhancements for prior felony drug 8 convictions. Because the sentencing transcript unequivocally shows that petitioner was given the 9 30-year sentence due to his prior convictions, with no mention by any party or the court of any 10 death resulting from the drugs he sold, Burrage is simply inapplicable to petitioner’s case. 11 Petitioner advances no other theory under which the court could conclude that he is actually 12 innocent of the drug crimes he was convicted of or the prior convictions underlying his enhanced 13 sentence. Because Burrage is flatly inapplicable to the facts of this case and petitioner makes no 14 other argument, petitioner has failed to demonstrate that he was “convicted for conduct not 15 prohibited by law.” Alaimalo, 645 F.3d at 1047. 16 As petitioner has failed to make the showing of actual innocence required for this court to 17 entertain his § 2241 petition under § 2255(e), respondent’s motion to dismiss must be granted. 18 IV. Recommendation and Order 19 For the foregoing reasons, it is hereby ORDERED that the Clerk of Court randomly 20 assign a United States District Judge to this case. Further, it is RECOMMENDED that 21 respondent’s January 9, 2020 motion to dismiss (ECF No. 9) be granted and the case be 22 dismissed for lack of jurisdiction. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 28 ///// wOAOe 2 VELOUR BD MVOC toy POC VI er OY VI
1 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 | DATED: September 1, 2020. 4 Dating : heh bie 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28