(HC) Nelson v. Lake

• Court: District Court, E.D. California
• Decided: November 22, 2019
• Docket: 1:19-cv-01487
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CECIL DEWITT NELSON, ) Case No.: 1:19-cv-01487-DAD-SKO (HC) ) 12 Petitioner, ) ) FINDINGS AND RECOMMENDATIONS TO 13 v. ) DISMISS PETITION FOR WRIT OF HABEAS ) CORPUS 14 STEVEN LAKE, Warden, ) 15 Respondent. ) [30-DAY OBJECTION DEADLINE] ) 16 ) ) 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 October 21, 21 2019, challenging his conviction and sentence. Because Petitioner does not satisfy the savings clause 22 in 28 U.S.C. § 2255 which would allow him to challenge his conviction by way of § 2241, the Court 23 will recommend that the instant petition be DISMISSED. 24 BACKGROUND 25 On January 30, 2013, Petitioner pled guilty to one count of conspiracy to kidnap (18 U.S.C. § 26 1201(c)) in the United States District Court for the Southern District of Georgia. See United States v. 27 28 1 Murray, Case No. 6:12-cr-00005-JRH-CLR (S.D. Ga.).1 The district court sentenced Petitioner to a 2 term of life imprisonment. Id. 3 On March 27, 2013, Petitioner appealed to the Eleventh Circuit Court of Appeals. Id. (Doc. 4 171.) On January 22, 2014, the appellate court affirmed the judgment. Id. (Doc. 196.) On February 5 26, 2015, Petitioner filed a motion to vacate judgment pursuant to 28 U.S.C. § 2255. Id. (Doc. 199.) 6 The trial court denied the § 2255 motion on August 10, 2015. Id. (Doc. 217.) Petitioner appealed to 7 the Eleventh Circuit on August 24, 2015, and the appeal was denied on December 30, 2015. Id. (Docs. 8 223, 232.) Petitioner filed a motion for reconsideration with the Eleventh Circuit, and the appellate 9 court denied the motion on March 1, 2016. Id. (Docs. 232, 240.) On December 5, 2017, Petitioner 10 filed a motion for emergency relief from a void judgment in the trial court. Id. (Doc. 280.) On July 12, 11 2018, the district court construed the motion as a § 2255 motion and denied it as an unauthorized 12 successive motion. Id. (Doc. 289.) Petitioner appealed, and on February 21, 2019, the Eleventh 13 Circuit dismissed the appeal. Id. (Docs. 290, 297, 298.) Petitioner then filed a motion for writ of 14 mandamus in the sentencing court, and the court denied the motion on March 26, 2019. Id. (Docs. 299, 15 300.) Petitioner then filed several miscellaneous motions seeking relief which the sentencing court 16 summarily rejected. Id. (Docs. 309, 318, 324, 325.) Recently, on October 22, 2019, he filed a motion 17 to alter or amend judgment which is currently pending in the sentencing court. Id. (Doc. 327.) 18 On February 21, 2019, Petitioner filed a petition for writ of habeas corpus in this Court in 19 Nelson v. Lake, Case No. 1:19-cv-00249-LJO-SKO. The petition was dismissed for lack of 20 jurisdiction. 21 On October 21, 2019, Petitioner filed the instant habeas petition. He makes various vague and 22 nonsensical claims concerning the conviction and sentence. In Ground One, he alleges that “the U.S. 23 Attorney billed the petitioner, then established/executed a bond/contract, then made claim on the 24 petitioner for not performing the terms of the bond which resulted in the petitioner’s prosecution and 25 26 1 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources 27 whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 28 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.). 1 imprisonment.” (Doc. 1 at 4.) In Ground Two, he appears to claim that he was led to believe the 2 proceeding was criminal in nature, but it was in fact commercial in nature. (Doc. 1 at 4.) In Ground 3 Three, he claims “the U.S. Attorney received a security/payment for the charges”; therefore, he 4 “cannot in addition be incarcerated.” (Doc. 1 at 5.) In Ground Four, he contends he should not be 5 incarcerated because the penalty for the crime is a money judgment which he has satisfied. (Doc. 1 at 6 6.) Finally, in Ground Five, he alleges the prosecutor and defense attorney committed fraud on the 7 court, violated due process, subjected Petitioner to cruel and unusual punishment, and rendered 8 ineffective assistance of counsel. (Doc. 1 at 6.) He contends he had not agreed to the terms of the 9 amended plea agreement, but his signature was forged, cut and pasted. 10 DISCUSSION 11 A federal prisoner who wishes to challenge the validity or constitutionality of his federal 12 conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence 13 under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also Stephens v. 14 Herrera, 464 F.3d 895, 897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007). In such cases, only the 15 sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. Generally, a prisoner may not collaterally 16 attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 17 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; 18 see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980). 19 In contrast, a prisoner challenging the manner, location, or conditions of that sentence's 20 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district where 21 the petitioner is in custody. Stephens, 464 F.3d at 897; Hernandez v. Campbell, 204 F.3d 861, 864-65 22 (9th Cir.2000) (per curiam). “The general rule is that a motion under 28 U.S.C. § 2255 is the 23 exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions 24 on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” 25 Stephens, 464 F.3d at 897 (citations omitted). 26 Nevertheless, an exception exists by which a federal prisoner may seek relief under § 2241 if 27 he can demonstrate the remedy available under § 2255 to be "inadequate or ineffective to test the 28 validity of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting 28 U.S.C. 1 § 2255); see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a very narrow 2 exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.2003). The remedy under § 2255 usually 3 will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or 4 because a remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964) 5 (a court’s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 6 F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition 7 inadequate). 8 The Ninth Circuit has held that Section 2255 provides an ‘inadequate and ineffective’ remedy 9 (and thus that the petitioner may proceed under Section 2241) when the petitioner: (1) makes a claim 10 of actual innocence; and, (2) has never had an ‘unobstructed procedural shot’ at presenting the claim. 11 Stephens, 464 F.3d at 898. The burden is on the petitioner to show that the remedy is inadequate or 12 ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir.1963). 13 In this case, Petitioner is challenging the validity and constitutionality of his conviction and 14 sentence as imposed by the United States District Court for the Southern District of Georgia, rather 15 than an error in the administration of his sentence. Therefore, the appropriate procedure would be to 16 file a motion pursuant to § 2255 in the Southern District of Georgia, not a habeas petition pursuant to § 17 2241 in this Court. Petitioner was made known of this fact in his prior habeas proceeding in this 18 Court, which was dismissed for lack of habeas jurisdiction. Just as with the previous habeas 19 application, this Court lacks habeas jurisdiction because Petitioner has had numerous unobstructed 20 procedural opportunities to present his claims, and he does not present a claim of actual innocence. 21 First, as previously set forth, Petitioner has had numerous opportunities to present his claims to 22 the sentencing court, and in fact, several of his claims were rejected by the sentencing court. For 23 example, his claim that his plea agreement was invalid in light of allegedly forged signatures on the 24 amended plea agreement was rejected because the sentencing court noted that the full terms of his plea 25 were discussed in open court. Murray, Case No. 6:12-cr-00005-JRH-CLR (Doc. 201 at 6.) The Court 26 noted that “the judge and government spelled out his crime’s elements”; and, “the record shows that 27 Nelson understood the nature of the charges against him, the rights he gave up when he entered the 28 guilty plea, and the possible penalties for the offense.” Id. (Doc. 201 at 5.) Furthermore, the factual 1 bases for his claims were known to him prior to the filing of his first § 2255 motion. The legal bases 2 for his claims were also available to him before he filed his first § 2255 motion. Petitioner has not 3 shown that he was precluded from presenting these claims in his prior motions, and therefore, he has 4 failed to demonstrate that he has not had an unobstructed procedural opportunity to present his claims. 5 In addition, Petitioner has failed to demonstrate that his claims qualify under the savings clause 6 of Section 2255 because his claims are not proper claims of “actual innocence.” In the Ninth Circuit, a 7 claim of actual innocence for purposes of the Section 2255 savings clause is tested by the standard 8 articulated by the United States Supreme Court in Bousley v. United States, 523 U.S. 614 (1998). 9 Stephens, 464 U.S. at 898. In Bousley, the Supreme Court explained that, “[t]o establish actual 10 innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that 11 no reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 (internal quotation marks 12 omitted). Petitioner bears the burden of proof on this issue by a preponderance of the evidence, and he 13 must show not just that the evidence against him was weak, but that it was so weak that “no reasonable 14 juror” would have convicted him. Lorentsen, 223 F.3d at 954. In this case, Petitioner makes no claim 15 of being factually innocent of conspiracy to kidnap. Rather, he takes issue with the performance of 16 defense counsel, the prosecutor, and the trial court as well as the authenticity of the amended plea 17 agreement document, and he makes nonsensical points such as being subject to commercial law rather 18 than criminal law. Under the savings clause, Petitioner must demonstrate that he is actually innocent 19 of the crime for which he has been convicted. See Ivy, 328 F.3d at 1060; Lorentsen, 223 F.3d at 954 20 (to establish jurisdiction under Section 2241, petitioner must allege that he is “‘actually innocent’ of 21 the crime of conviction”). Therefore, the instant § 2241 petition does not fit within the exception to 22 the general bar against using Section 2241 to collaterally attack a conviction or sentence imposed by a 23 federal court. See Stephens, 464 F.3d at 898-99 (concluding that, although petitioner satisfied the 24 requirement of not having had an “unobstructed procedural shot” at presenting his instructional error 25 claim under Richardson v. United States, 526 U.S. 813, 119 (1999), petitioner could not satisfy the 26 actual innocence requirement as articulated in Bousley and, thus, failed to properly invoke the escape 27 hatch exception of Section 2255). 28 1 Even if Petitioner satisfied the savings clause and the Court could entertain his petition, relief 2 would be barred since Petitioner waived his right to collateral review in his plea bargain. Murray, Case 3 No. 6:12-cr-00005-JRH-CLR (Doc. 148 at 6.); see United States v. Abarca, 985 F.2d 1012, 1014 (9th 4 Cir. 1993) (enforcing a waiver to collateral attack of conviction in § 2255 proceeding). 5 Accordingly, the Court concludes that Petitioner has not demonstrated that Section 2255 6 constitutes an “inadequate or ineffective” remedy for raising his claims. Section 2241 is not the 7 proper statute for raising Petitioner's claims, and the petition must be dismissed for lack of jurisdiction. 8 In addition, his claims are barred from review because he validly waived his right to collateral review. 9 RECOMMENDATION 10 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 11 DISMISSED for lack of jurisdiction. 12 This Findings and Recommendation is submitted to the United States District Court Judge 13 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 14 Local Rules of Practice for the United States District Court, Eastern District of California. Within 15 thirty (30) days after being served with a copy of this Findings and Recommendation, Petitioner may 16 file written objections with the Court and serve a copy on all parties. Such a document should be 17 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The Court will then 18 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that 19 failure to file objections within the specified time may waive the right to appeal the Order of the 20 District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 IT IS SO ORDERED.

23 Sheila K. Oberto Dated: November 22, 2019 /s/ . 24 UNITED STATES MAGISTRATE JUDGE

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