1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARSENIO C. BRUNDIDGE, No. 1:24-cv-00245-JLT-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS FIRST AMENDED PETITION FOR 13 v. LACK OF JURISDICTION1 14 B.M. TRATE, Warden, FOURTEEN-DAY OBJECTION PERIOD 15 Respondent. (Doc. No. 8) 16 17 18 Petitioner Arsenio C. Brundidge (“Petitioner”), a federal prisoner, is proceeding pro se on 19 his first amended petition for writ of habeas corpus under 28 U.S.C. § 2241, filed while 20 incarcerated in Atwater Penitentiary, located in Merced County, California, which is within the 21 venue and jurisdiction of this Court. (Doc. No. 8, “First Amended Petition”). This matter is 22 before the Court for preliminary review. See Rules Governing § 2254 Cases, Rule 4; 28 U.S.C. § 23 2243. For the reasons set forth below, the Court recommends that the Petition be DISMISSED 24 for lack of jurisdiction. 25 I. BACKGROUND 26 Petitioner, a federal prisoner, is serving a 235-month cumulative sentence for possession 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 of cocaine under 21 U.S.C. § 844 and possession of a firearm by a convicted felon under 18 2 U.S.C. § 922(g)(1) and § 924(e)(1), imposed in 2016 after a jury trial by the United States District 3 Court for the Middle District of Georgia (“MDGA”). See United States v. Brundidge, 4:15-cr- 4 00012-CDL-MSH, Crim. Doc. Nos. 1, 44 (M.D. Ga.); Doc. No. 8.2 Petitioner’s conviction and 5 sentence were affirmed on direct appeal by the United States Court of Appeals for the Eleventh 6 Circuit. Crim. Doc. No. 77; United States v. Brundidge, 708 Fed. App’x 608 (11th Cir. 2017). 7 Petitioner filed § 2255 motions to vacate his sentence, which were denied by the MDGA. Crim. 8 Doc. Nos. 100, 112. 9 To the extent discernable, the First Amended Petition raises two grounds for relief: (1) 10 based on Supreme Court holdings in United States v. Haymond, 588 U.S. ---, 139 S. Ct. 2369 and 11 Apprendi v. New Jersey, 530 U.S. 466 (2000), Petitioner is actually innocent of his conviction 12 under 18 U.S.C. § 924(e) because the jury did not find him guilty of any predicate felony offense; 13 and (2) “ineffective assistance of counsel/Sixth Amendment violations.” (Doc. No. 8 at 2-3, 6). 14 II. APPLICABLE LAW AND ANALYSIS 15 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 16 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it 17 plainly appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the 18 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 19 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 20 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 21 dismiss, or after an answer to the petition has been filed. Courts have “an active role in 22 summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. Williams, 896 23 F.3d 958, 968 (9th Cir. 2018) (citation omitted). However, a petition for habeas corpus should 24 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 25 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 26
27 2 The Court has reviewed the docket in Petitioner’s criminal case from the Middle District of Georgia and takes judicial notice of it under Federal Rules of Evidence 201. The undersigned cites to the record in 28 Petitioner’s underlying MDGA criminal case as “Crim. Doc. No. _.”. 1 A. Jurisdiction under § 2241 2 Generally, a § 2241 petition is reserved for federal prisoners challenging “the manner, 3 location, or conditions of a sentence’s execution.” Harrison v. Ollison, 519 F.3d 952, 956 (9th 4 Cir. 2008). Federal prisoners seeking to challenge the legality of their confinement must do so 5 through a § 2255 motion. Jones v. Hendrix, 599 U.S. 465 (2023); Marrero v. Ives, 682 F.3d 6 1190, 1192 (9th Cir. 2012). In limited circumstances, federal prisoners may challenge the legality 7 of their confinement through a § 2241 petition by utilizing the so-called “savings clause” or 8 “escape hatch” provision of § 2255(e). Jones, 599 U.S. at 474-76; Harrison, 519 F.3d at 956. 9 This portal permits a federal prisoner to challenge the legality of confinement if he can establish 10 that the remedy provided under § 2255 is “inadequate or ineffective to test the legality of his 11 detention.” 28 U.S.C. § 2255(e); see also Jones, 599 U.S. at 478 (“After AEDPA, as before it, 12 the savings clause preserves recourse to § 2241 in cases where unusual circumstances make it 13 impossible or impracticable to seek relief in the sentencing court, as well as for challenges to 14 detention other than collateral attacks on a sentence.”). 15 In Jones v. Hendrix, the Supreme Court held “that § 2255(e)’s savings clause does not 16 permit a prisoner asserting an intervening change in statutory interpretation to circumvent 17 AEDPA’s restrictions on second or successive § 2255 motions by filing a § 2241 petition.” Jones 18 v. Hendrix, 599 U.S. at 471. The Supreme Court noted that § 2255(h) limits second or successive 19 § 2255 motions to those that contain “(1) newly discovered evidence that, if proven and viewed in 20 light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence 21 that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule 22 of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that 23 was previously unavailable.” Id. at 476. “The inability of a prisoner with a statutory claim to 24 satisfy those conditions does not mean that he can bring his claim in a habeas petition under the 25 savings clause. It means he cannot bring it at all.” Id. at 480. 26 As an initial matter, irrespective of any analysis under § 2255(e) or Jones v. Hendrix, 27 Petitioner’s ground for relief based on United States v. Haymond is without merit. In Haymond, 28 the Supreme Court specifically ruled that 18 U.S.C. § 3583(k), as applied, violated a defendant’s 1 Sixth Amendment right to jury trial and Fifth Amendment right to due process by authorizing a 2 new mandatory minimum prison sentence for supervised release violation based on a judge’s fact- 3 finding by preponderance of the evidence. 139 S. Ct. at 2382 (plurality opinion).
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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 ARSENIO C. BRUNDIDGE, No. 1:24-cv-00245-JLT-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS FIRST AMENDED PETITION FOR 13 v. LACK OF JURISDICTION1 14 B.M. TRATE, Warden, FOURTEEN-DAY OBJECTION PERIOD 15 Respondent. (Doc. No. 8) 16 17 18 Petitioner Arsenio C. Brundidge (“Petitioner”), a federal prisoner, is proceeding pro se on 19 his first amended petition for writ of habeas corpus under 28 U.S.C. § 2241, filed while 20 incarcerated in Atwater Penitentiary, located in Merced County, California, which is within the 21 venue and jurisdiction of this Court. (Doc. No. 8, “First Amended Petition”). This matter is 22 before the Court for preliminary review. See Rules Governing § 2254 Cases, Rule 4; 28 U.S.C. § 23 2243. For the reasons set forth below, the Court recommends that the Petition be DISMISSED 24 for lack of jurisdiction. 25 I. BACKGROUND 26 Petitioner, a federal prisoner, is serving a 235-month cumulative sentence for possession 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 of cocaine under 21 U.S.C. § 844 and possession of a firearm by a convicted felon under 18 2 U.S.C. § 922(g)(1) and § 924(e)(1), imposed in 2016 after a jury trial by the United States District 3 Court for the Middle District of Georgia (“MDGA”). See United States v. Brundidge, 4:15-cr- 4 00012-CDL-MSH, Crim. Doc. Nos. 1, 44 (M.D. Ga.); Doc. No. 8.2 Petitioner’s conviction and 5 sentence were affirmed on direct appeal by the United States Court of Appeals for the Eleventh 6 Circuit. Crim. Doc. No. 77; United States v. Brundidge, 708 Fed. App’x 608 (11th Cir. 2017). 7 Petitioner filed § 2255 motions to vacate his sentence, which were denied by the MDGA. Crim. 8 Doc. Nos. 100, 112. 9 To the extent discernable, the First Amended Petition raises two grounds for relief: (1) 10 based on Supreme Court holdings in United States v. Haymond, 588 U.S. ---, 139 S. Ct. 2369 and 11 Apprendi v. New Jersey, 530 U.S. 466 (2000), Petitioner is actually innocent of his conviction 12 under 18 U.S.C. § 924(e) because the jury did not find him guilty of any predicate felony offense; 13 and (2) “ineffective assistance of counsel/Sixth Amendment violations.” (Doc. No. 8 at 2-3, 6). 14 II. APPLICABLE LAW AND ANALYSIS 15 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 16 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it 17 plainly appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the 18 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 19 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 20 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 21 dismiss, or after an answer to the petition has been filed. Courts have “an active role in 22 summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. Williams, 896 23 F.3d 958, 968 (9th Cir. 2018) (citation omitted). However, a petition for habeas corpus should 24 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 25 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 26
27 2 The Court has reviewed the docket in Petitioner’s criminal case from the Middle District of Georgia and takes judicial notice of it under Federal Rules of Evidence 201. The undersigned cites to the record in 28 Petitioner’s underlying MDGA criminal case as “Crim. Doc. No. _.”. 1 A. Jurisdiction under § 2241 2 Generally, a § 2241 petition is reserved for federal prisoners challenging “the manner, 3 location, or conditions of a sentence’s execution.” Harrison v. Ollison, 519 F.3d 952, 956 (9th 4 Cir. 2008). Federal prisoners seeking to challenge the legality of their confinement must do so 5 through a § 2255 motion. Jones v. Hendrix, 599 U.S. 465 (2023); Marrero v. Ives, 682 F.3d 6 1190, 1192 (9th Cir. 2012). In limited circumstances, federal prisoners may challenge the legality 7 of their confinement through a § 2241 petition by utilizing the so-called “savings clause” or 8 “escape hatch” provision of § 2255(e). Jones, 599 U.S. at 474-76; Harrison, 519 F.3d at 956. 9 This portal permits a federal prisoner to challenge the legality of confinement if he can establish 10 that the remedy provided under § 2255 is “inadequate or ineffective to test the legality of his 11 detention.” 28 U.S.C. § 2255(e); see also Jones, 599 U.S. at 478 (“After AEDPA, as before it, 12 the savings clause preserves recourse to § 2241 in cases where unusual circumstances make it 13 impossible or impracticable to seek relief in the sentencing court, as well as for challenges to 14 detention other than collateral attacks on a sentence.”). 15 In Jones v. Hendrix, the Supreme Court held “that § 2255(e)’s savings clause does not 16 permit a prisoner asserting an intervening change in statutory interpretation to circumvent 17 AEDPA’s restrictions on second or successive § 2255 motions by filing a § 2241 petition.” Jones 18 v. Hendrix, 599 U.S. at 471. The Supreme Court noted that § 2255(h) limits second or successive 19 § 2255 motions to those that contain “(1) newly discovered evidence that, if proven and viewed in 20 light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence 21 that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule 22 of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that 23 was previously unavailable.” Id. at 476. “The inability of a prisoner with a statutory claim to 24 satisfy those conditions does not mean that he can bring his claim in a habeas petition under the 25 savings clause. It means he cannot bring it at all.” Id. at 480. 26 As an initial matter, irrespective of any analysis under § 2255(e) or Jones v. Hendrix, 27 Petitioner’s ground for relief based on United States v. Haymond is without merit. In Haymond, 28 the Supreme Court specifically ruled that 18 U.S.C. § 3583(k), as applied, violated a defendant’s 1 Sixth Amendment right to jury trial and Fifth Amendment right to due process by authorizing a 2 new mandatory minimum prison sentence for supervised release violation based on a judge’s fact- 3 finding by preponderance of the evidence. 139 S. Ct. at 2382 (plurality opinion). Petitioner does 4 not argue, nor can the Court discern, how Haymond is applicable to Petitioner’s conviction under 5 18 U.S.C. § 924(e). See id. at 2369 (expressly limiting the decision to 18 U.S.C. § 3583(k), “an 6 unusual provision enacted little more than a decade ago”); see also Miller v. United States, 2022 7 WL 3288244, at (N.D. Oh. July 11, 2022) (citing United States v. Gray, 2021 WL 2026929 (6th 8 Cir. May 19, 2021) (dismissing § 2241 petition and noting Haymond is applicable only if a 9 defendant has been sentenced under § 3583(k)). 10 Moreover, liberally construed, Petitioner appears to rely on Haymond and Apprendi to 11 support his claim that he is “actually innocent” of § 924(e) because a jury did not find him guilty 12 of a predicate offense; however, Petitioner makes no argument that unusual circumstances made 13 it “impossible or impracticable” for him to seek relief from the sentencing court pursuant to § 14 2255(e). See Jones, 599 U.S. at 478; Cf. Shepherd v. Unknown Party, Warden, FCI Tucson, 54 15 F.4th 1075, 1076 (9th Cir. 2021) (to demonstrate a remedy is “inadequate or ineffective” a 16 petitioner must: (1) make a claim of actual innocence, and (2) show that he has not had an 17 “unobstructed procedural shot at presenting that claim.”). 18 Because Plaintiff has failed to satisfy the “savings clause” of § 2255, this Court lacks 19 jurisdiction over the § 2241 First Amended Petition. Further, as Petitioner has not been granted 20 leave by the Court of Appeals to file a successive § 2255 motion, it would be futile to transfer the 21 § 2241 petition to the MDGA for consideration as a § 2255 motion. 22 Accordingly, it is RECOMMENDED: 23 The First Amended Petition (Doc. No. 8) be DISMISSED for lack of jurisdiction. 24 NOTICE TO PARTIES 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 27 after being served with a copy of these Findings and Recommendations, a party may file written 28 objections with the Court. Id.; Local Rule 304(b). The document should be captioned, 1 | “Objections to Magistrate Judge’s Findings and Recommendations.” The assigned District Judge 2 | will review these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s 3 | failure to file objections within the specified time may result in the waiver of certain rights on 4 | appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 5 ° | Dated: _ April 29, 2024 law □□□ foareA Zacks 7 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28