John Forrest v. Thahesha Jusino

• Court: District Court, C.D. California
• Decided: March 29, 2021
• Docket: 2:20-cv-03465
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOHN FORREST, Case No. 2:20-cv-03465-PD

12 Petitioner, MEMORANDUM OPINION 13 v. AND ORDER DISMISSING PETITION WITHOUT 14 THAHESHA JUSINO, Warden, PREJUDICE 15 Respondent. 16

17 Petitioner John Forrest, an inmate at the Federal Correctional 18 Institution in Victorville, California, filed a Petition for Writ of Habeas 19 Corpus by a Person in Federal Custody pursuant to 28 U.S.C. § 2241. For the 20 reasons set forth below, the Petition is dismissed without prejudice for lack of 21 jurisdiction, and the Court will issue a certificate of appealability.1 22 23 24 25 26

27 1 The parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including entry of final 28 judgment. [Dkt. Nos. 9; 10.] 1 I. Pertinent Procedural History 2 A. Proceedings in the Nebraska District Court and the Eighth Circuit 3 4 In 2009, in the District of Nebraska, Petitioner pleaded guilty to one 5 count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).2 At sentencing, the district court found that Petitioner had sustained four prior 6 convictions for a violent felony (three in Colorado for second-degree burglary 7 in 1986, robbery in 1988, and menacing in 1995, and one in Kansas for 8 attempted burglary in 2004) under 18 U.S.C. § 924(e), the Armed Career 9 Criminal Act (“ACCA”).3 The ACCA imposes a 15-year mandatory minimum 10 sentence if a defendant is convicted of being a felon in possession of a firearm 11 following three prior convictions for a violent felony. 18 U.S.C. § 924(e)(1). 12 Absent the sentencing enhancement, the felon-in-possession of a firearm 13 offense sets a 10-year maximum sentence. 18 U.S.C. § 924(a)(2). In this case, 14 the court imposed the statutorily mandated 15-year sentence. See 18 U.S.C. 15 § 924(e)(1). 16

17 2 The Court takes judicial notice of the dockets from Petitioner’s criminal case in the 18 district court in Nebraska and the appellate proceedings in the Eighth Circuit. See Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (noting that courts 19 may take judicial notice of undisputed matters of public record, including documents on file in federal or state courts). 20

21 3 At that time, the ACCA defined a “violent felony” as follows: any crime punishable by imprisonment for a term exceeding one year 22 ... that — (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, 23 arson, or extortion, involves use of explosives, or otherwise involves 24 conduct that presents a serious potential risk of physical injury to another. 25 18 U.S.C. § 924(e)(2)(B). The district court did not specify whether Petitioner’s four prior offenses were violent felonies as crimes involving “force,” as used in the 26 statute, or whether they qualified either as crimes “explicitly enumerated” in the 27 statute or as crimes that fell within the statute’s “residual” clause. [Nebraska Case, Dkt. No. 94 at 78.] 28 1 Petitioner appealed his sentence, arguing that none of his four prior 2 convictions was for a “violent felony” as defined in 18 U.S.C. § 924(e)(2)(B). 3 Regarding his 1986 second-degree burglary conviction in Colorado, Petitioner 4 argued that under Taylor v. United States, 495 U.S. 575 (1990), it could not 5 qualify as an ACCA predicate because its elements are broader than those of a 6 listed generic offense. [Dkt. No. 2 at 4.] 7 In 2010, the Eighth Circuit affirmed. United States v. Forrest, 611 F.3d 8 908 (8th Cir.), cert denied, 131 S. Ct. 622 (2010). The court held that the 9 Kansas attempted burglary conviction qualified as a violent felony under the 10 residual clause of the ACCA, the robbery and menacing convictions fell within 11 the definition of violent felony under the force clause, and the Colorado 12 second-degree burglary conviction qualified under the enumerated offenses 13 clause. Id. at 911-13. Recognizing that the Colorado burglary statute at issue “was potentially over-inclusive under Taylor,” the court employed the 14 modified categorial approach to determine that the district court had not 15 erred in finding that Petitioner’s second-degree burglary conviction was for a 16 violent felony offense enumerated in 18 U.S.C. § 924(e)(2)(B)(ii). 4 Id. at 913. 17 Petitioner filed a petition for certiorari in the United States Supreme Court, 18 which was denied. Forrest v. United States, 131 S. Ct. 622 (2010). 19 In 2011, Petitioner filed his first motion under 28 U.S.C. § 2255 (the 20 “2011 Motion”). He argued, among other things, that the district court erred 21 22 4 The relevant Colorado statute stated that a person: “commits second degree 23 burglary, if he knowingly breaks an entrance into, or enters, or remains unlawfully 24 in a building or occupied structure with intent to commit therein a crime against a person or property.” Colo. Rev. Stat. Ann. § 18-4-203 (1986). The criminal 25 complaint alleged that Petitioner did “unlawfully, feloniously and knowingly break an entrance into and enter and remain unlawfully in the building and occupied 26 structure . . .” Forrest, 611 F.3d at 913. The Eighth Circuit determined that the 27 complaint “clearly charged a generic burglary offense” and that the evidence was sufficient to permit the district court to find that the judgment was in fact a 28 conviction for the generic burglary offense charged in the complaint. Id. 1 in finding that the Colorado second-degree burglary and Kansas attempted 2 burglary convictions were violent felonies under the ACCA. The district court 3 rejected this argument, stating that it was “simply a rehash of what 4 [petitioner] argued in his direct appeal with a slightly different twist” and 5 that under United States v. Davis, 406 F.3d. 505, 511 (8th Cir. 2005), an issue 6 raised and decided on direct appeal will not be reconsidered in a § 2255 7 motion. United States v. Forrest, 2011 WL 13272652, at *3 (D. Neb. Oct. 5, 8 2011). The court dismissed the 2011 Motion with prejudice. Id. The Eighth 9 Circuit subsequently dismissed Petitioner’s appeal. United States v. John 10 Forrest, Case No. 11-3358 (8th Cir. Dec. 23, 2011). 11 In 2014, Petitioner sought permission from the Eighth Circuit to file a 12 second motion under 28 U.S.C. § 2255. He claimed actual innocence of his 13 ACCA sentence based on the holding in Descamps v. United States, 570 U.S. 254, 258 (2013), that sentencing courts may not apply the modified categorical 14 approach when the crime of which the defendant was convicted has a single, 15 indivisible set of elements. The Supreme Court held that it was error to 16 invoke the modified categorical approach to look behind the prior conviction in 17 search of record evidence that the petitioner had committed the generic 18 offense to determine whether it qualified as an ACCA predicate. Id. at 277- 19 78. The Eighth Circuit denied Petitioner’s request for authorization to file a 20 second § 2255 motion. United States v. John Forrest, Case No. 14-2108 (8th 21 Cir. Aug. 29, 2014, Order). 22 In 2015, the Supreme Court held that the “residual clause” of the 23 ACCA, which identifies qualifying predicate offenses as “involv[ing] conduct 24 that presents a serious potential risk of physical injury to another,” was 25 unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 606 (2015). 26 In 2016, the Supreme Court held that Johnson could be applied retroactively 27 28 1 to cases on collateral review. Welch v. United States, 136 S. Ct. 1257, 1259-60 2 (2016). 3 Based on Johnson and Welch, the Eighth Circuit granted Petitioner 4 leave under 28 U.S.C. § 2255(h) to file a successive motion to correct his 5 sentence. Forrest v. United States, 934 F.3d 775, 777 (8th Cir. 2019). 6 Petitioner filed his successive § 2255 motion in 2017 (the “2017 Motion”). 7 [Nebraska Case, Dkt. No. 146.] He argued that under Johnson, his 2004 8 Kansas conviction for attempted burglary no longer met the statutory 9 definition of a violent felony. He also argued that his Colorado conviction for 10 second-degree burglary was subject to reclassification under Descamps and 11 Mathis v. United States, 136 S. Ct. 2243, 2257 (2016) (holding that a prior 12 conviction does not qualify as a predicate violent felony under the ACCA if the 13 statute of conviction enumerates multiple, alternative factual means of satisfying a single element). The government conceded that under Johnson, 14 the Kansas attempted burglary conviction no longer qualified as a predicate 15 offense under the ACCA. The government argued that the second-degree 16 burglary conviction in Colorado still qualified, however, because Mathis and 17 Descamps had not been made retroactively applicable to cases on collateral 18 review. [Nebraska Case, Dkt. No. 148 at 6, 8]5 19 The district court denied the 2017 Motion because it relied on Mathis 20 and Descamps and thus failed to meet the requirement that a successive 21 § 2255 motion must be based upon a “new rule of constitutional law, made 22 retroactive to cases on collateral review by the Supreme Court, that was 23 previously unavailable.” United States v. Forrest, 2017 WL 6205790, at *2 (D. 24 Neb. Dec. 6, 2017) (citing 28 U.S.C. § 2255(h)(2)). Citing cases decided by the 25 26

27 5 If the 1986 Colorado conviction did not quality as a violent felony under the ACCA, then Petitioner would not be subject to the mandatory minimum sentence because 28 he would have fewer than three convictions for violent felonies. 1 Seventh, Eighth, Ninth and Eleventh Circuits, the court explained that 2 Mathis followed from Descamps and Taylor, none of which had been made 3 retroactively applicable to cases on collateral review. Id. The court rejected 4 Petitioner’s argument that because Johnson and Welch changed the status of 5 his Kansas attempted burglary conviction, he should receive a new sentencing 6 hearing at which he could rely on Mathis and Descamps to show that his 7 Colorado second-degree burglary conviction no longer qualified as a violent 8 felony under the ACCA. Id. The district court granted a certificate of 9 appealability on the ground that one court in the Eighth Circuit had used 10 Johnson as a “portal” to grant relief under Mathis. Id. 11 Petitioner appealed, and the Eighth Circuit affirmed, holding that he 12 did not meet the requirements of § 2255(h)(2) for filing a successive motion. 13 Forrest, 934 F.3d at 777. The court stated that an order granting leave to file a successive § 2255 motion is “a preliminary determination subject to fuller 14 consideration after the motion is filed.” Id. The court concluded that Johnson 15 was the only new rule upon which Petitioner relied, as “[n]either Mathis nor 16 Descamps announced a new rule of constitutional law that the Supreme Court 17 has made retroactive to cases on collateral review.” Id. at 778.6 Petitioner 18

19 6 In her separate opinion, concurring in judgment, Circuit Judge Kelly, stated:

20 It is undisputed that under current law, [Petitioner] does not qualify for 21 an ACCA enhancement. Yet he will be required to serve five years more than the statutory maximum sentence for his offense as the result of 22 the ACCA enhancement because the original application of the enhancement might have resulted from not one mistake, but two: first, 23 application of the residual clause, which the Supreme Court later 24 struck from the statute as unconstitutional; and second, application of our circuit’s case law on the modified categorical approach, which the 25 Supreme Court later explained was erroneous and had been for some time. See Mathis, 136 S. Ct. at 2257 (“Our precedents make this a 26 straightforward case. For more than 25 years, we have repeatedly made 27 clear that application of ACCA involves, and involves only, comparing elements.”). But for this court’s erroneous understanding of how to 28 identify an ACCA predicate offense at the time of [Petitioner’s] 1 filed a petition for writ of certiorari, which was denied. Forrest v. United 2 States, 140 S. Ct. 669 (2019). 3 Petitioner is now incarcerated in this district and seeks relief under 28 4 U.S.C. § 2241. 5 III. Discussion 6 Petitioner contends that under Mathis and Descamps, he is actually 7 innocent of his sentence imposed under the ACCA because the sentencing 8 court erred in utilizing the modified categorical approach to determine that 9 his 1986 second-degree burglary conviction qualified as a violent felony under 10 the ACCA. He asserts that 28 U.S.C. § 2255 is inadequate and ineffective to 11 test the legality of his confinement, and he seeks to invoke 28 U.S.C. 12 § 2255(e), also known as the “escape hatch” or “savings clause,” under which 13 this Court may entertain his § 2241 petition. To meet the escape hatch 14 criteria, a petitioner must (1) make a claim of actual innocence, and (2) have 15 not had an unobstructed procedural shot at presenting that claim. Alaimalo 16 v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (citations omitted). 17 The government concedes that under Allen v. Ives, 950 F.3d 1184 (9th 18 Cir. 2020) rehearing en banc denied, 976 F.3d 863 (2020), Petitioner has made 19 a cognizable claim that he is actually innocent of his ACCA sentence for the 20 purpose of qualifying for the escape hatch. The government argues that 21 Petitioner does not meet the second criterion, however, because he has had an 22 unobstructed procedural shot at presenting his claim. 23 24 sentencing, the district court would have identified three predicates, 25 and [Petitioner] would now qualify for relief under Johnson because he 26 has only two predicates. I would not penalize [Petitioner] with five years’ imprisonment because of our error while similarly situated 27 § 2255 movants in other circuits obtain relief . . .

28 Forrest, 934 F.3d at 780. 1 A. This Court Lacks Jurisdiction to Entertain the Petition 2 1. Applicable Law 3 The procedural mechanism for a federal inmate to challenge the legality 4 of a sentence is a motion under 28 U.S.C. § 2255. Harrison v. Ollison, 519 5 F.3d 952, 954 (9th Cir. 2008). Only the sentencing court has jurisdiction in a 6 § 2255 case. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). A 7 challenge to the manner, location or conditions of the execution of a sentence 8 must be brought under 28 U.S.C. § 2241 in the district where the petitioner is 9 in custody. Id. 10 These limitations have one exception by which a federal inmate may 11 invoke § 2241 to challenge the legality of his detention. Harrison, 519 F.3d at 12 956. “[I]f, and only if, the remedy under § 2255 is ‘inadequate or ineffective to test the legality of his detention’” may a prisoner proceed under § 2241. 13 Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012) (quoting Stephens v. 14 Herrera, 464 F.3d. 895, 897 (9th Cir. 2006)). The savings clause is not a 15 mechanism to circumvent the procedural limitations on § 2255 motions or to 16 obtain a second chance to present a claim previously denied on the merits. 17 See Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003); Lorentsen v. Hood, 18 223 F.3d 950, 953 (9th Cir. 2000)). 19 In the Ninth Circuit, § 2255 provides an “inadequate or ineffective” 20 remedy allowing a petitioner to proceed under § 2241, when the petitioner 21 “makes a claim of actual innocence, and (2) has not had an unobstructed 22 procedural shot at presenting that claim.” Harrison, 519 F.3d at 959 (quoting 23 Stephens, 464 F.3d at 898.) 24 2. Analysis 25 Petitioner was convicted in the District of Nebraska. He challenges the 26 legality of his ACCA sentence under Mathis and Descamps. Presumptively, 27 Petitioner’s “exclusive” mechanism for this claim is a § 2255 motion in the 28 1 District of Nebraska. Petitioner brought that motion in the sentencing court; 2 in fact, he received authorization to file, and did file, a successive § 2255 3 motion raising his Mathis and Descamps claim, in both the sentencing court 4 and the Eighth Circuit. He seeks to invoke the escape hatch here on the 5 ground that § 2255 has proven to be inadequate or ineffective to test the 6 legality of his confinement. To invoke the escape hatch, Petitioner must 7 satisfy both requirements stated above. 8 a. Actual Innocence 9 Petitioner claims that under Mathis and Descamps, his 1986 Colorado 10 conviction for second-degree burglary is not a predicate crime under the 11 ACCA and he is therefore actually innocent of the mandatory sentence that 12 was imposed. In Allen, the Ninth Circuit held that a challenge to a 13 mandatory career offender sentence based on Mathis and Descamps was a cognizable claim of actual innocence that qualified for the escape hatch. 14 Allen, 950 F.3d at 1192; see also United States v. Wehmhoefer, 835 F. App’x 15 208 (9th Cir. 2020) (stating that for purposes of the escape hatch, Allen held 16 that claims sounding in Mathis and Descamps are retroactively applicable). 17 Here, the government concedes that under Allen, Petitioner has made a 18 cognizable claim of actual innocence that qualifies for the first prong of the 19 escape hatch. 20 b. Lack of An Unobstructed Procedural Shot 21 To determine what constitutes an “unobstructed procedural shot,” the 22 Ninth Circuit considers “(1) whether the legal basis for petitioner’s claim did 23 not arise until after he had exhausted his direct appeal and first § 2255 24 motion; and (2) whether the law changed in any way relevant to petitioner’s 25 claim after that first § 2255 motion.” Harrison, 519 F.3d at 960 (internal 26 quotation marks omitted). An intervening court decision must “effect a 27 material change in the applicable law” to establish unavailability. Id.; 28 1 Alaimalo, 645 F.3d at 1048 (explaining that Ninth Circuit decision that 2 transporting drugs from one location within the United States to another did 3 not constitute “importation” effected a material change in the law applicable 4 to the petitioner’s case). “In contrast, a decision that simply provides further 5 clarification of the statute of conviction without materially vary[ing] from the 6 statutory construction set forth in previous case law does not effect such a 7 change.” Alaimalo, 645 F.3d at 1048 (internal quotation marks omitted). 8 In this case, the legal basis for Petitioner’s claim did not arise until 9 after he had exhausted his direct appeal and first § 2255 motion. He 10 exhausted his direct appeal in 2010, and his first § 2255 motion in 2011. 11 Descamps was decided in 2013, and Mathis was issued in 2016. In addition, 12 after his first § 2255 motion, the law changed in a way relevant to Petitioner’s 13 claim. Mathis and Descamps changed the law affecting whether Petitioner’s prior second-degree burglary conviction qualified as a violent felony under the 14 ACCA. See Allen, 950 F.3d at 1190 (concluding that the petitioner did not 15 have an unobstructed procedural shot at presenting his actual innocence 16 claim “because it was foreclosed by existing precedent at the time of his direct 17 appeal and § 2255 motion”). In Allen, the Ninth Circuit explained that the 18 petitioner’s claim would have failed under the law at the time of the first 19 § 2255 motion because his prior conviction would have been analyzed under 20 the modified categorical approach. Id. at 1190-91. Based on Mathis and 21 Descamps, the petitioner could now argue that under the applicable 22 categorical approach, his prior conviction was not a predicate for the 23 sentencing enhancement. Id. at 1191. 24 However, unlike Allen, Petitioner was permitted to file a successive 25 § 2255 motion -- the 2017 Motion – raising his challenge based on Mathis and 26 Descamps. The 2017 Motion was denied because it failed to meet the 27 gatekeeping requirement of § 2255(h)(2) that a second or successive motion 28 1 must contain “a new rule of constitutional law, made retroactive to cases on 2 collateral review by the Supreme Court, that was previously unavailable.” 3 Forrest, 934 F.3d at 777-778. That the 2017 Motion was denied does not, 4 however, mean that the remedy by § 2255 motion was inadequate or 5 ineffective to test the legality of Petitioner’s detention. As the Ninth Circuit 6 explained in Ivy, “[I]t is not enough that the petitioner is presently barred 7 from raising his claim of actual innocence by motion under § 2255. He must 8 never have had the opportunity to raise it by motion.” 328 F.3d at 1060; see 9 Lewis v. Salazar, 829 F. App’x 239, 241 (9th Cir. 2020) (petitioner could not 10 show that his remedy under § 2255 was inadequate or ineffective, even 11 though the legal basis for his claim arose after his direct appeal and first 12 § 2255 motion, because he had multiple opportunities to present the claim in 13 motions for leave to file successive § 2255 motions and in another § 2241 petition). 14 Moreover, the cases upon which Petitioner relies do not support his 15 argument that he lacked an unobstructed procedural shot to assert his claim 16 that his second-degree burglary conviction does not qualify as a violent felony 17 under the ACCA. Unlike Petitioner’s claim, which was available before he 18 filed his 2017 Motion, the petitioner’s Mathis and Descamps claim in Allen 19 “did not become available until after the [Second] Circuit denied his § 2255 20 motion” and the Second Circuit refused to allow him to file a successive 21 petition after Descamps was decided. Under these facts, the Ninth Circuit 22 concluded that the petitioner never had an unobstructed procedural shot to 23 assert his claim in his sole § 2255 motion. Allen, 950 F.3d at 1191 (citing 24 Stephens, 464 F.3d at 898). Smith v. Martinez7 is equally distinguishable. 25 26

27 7 Smith v. Martinez, No. CV 17-18-TUC-JAS (BPV), 2018 WL 558996, at *12–14 (D. Ariz. Jan. 5, 2018), report and recommendation adopted, 2018 WL 526898 (Jan. 24, 28 2018). 1 There, the petitioner filed his first § 2255 motion before Descamps was 2 decided and was repeatedly denied permission by the Ninth Circuit to file a 3 successive petition after Descamps was decided. Under those facts, the 4 district court held that the petitioner had not had an unobstructed shot at 5 asserting his Descamps claim and, therefore, allowed the petitioner to assert 6 that claim in a § 2241 petition. Smith, 2018 WL 558996, at *4. Finally, 7 Wehmhoefer is readily distinguishable from Petitioner’s case because, there, 8 the petition at issue was the petitioner’s first habeas challenge to his 9 conviction and sentence. 835 F. App’x 208. 10 Here, not only has Petitioner had an unobstructed opportunity to 11 remedy any claim of actual innocence, he in fact seized that opportunity and 12 brought a successive § 2255 motion asserting the same argument advanced in 13 the instant Petition. Because he has had the opportunity to raise this issue, and did so, the escape hatch is unavailable. Consequently, Petitioner may not 14 bring the present challenge to his sentence as a § 2241 petition in this Court 15 but must raise it in a § 2255 motion in the district in which he was convicted. 16 Accordingly, this Court lacks jurisdiction over Petitioner’s claim. 17 Finally, the fact that the Ninth and the Eighth Circuits have come to 18 opposite conclusions regarding whether Mathis and Descamps apply 19 retroactively to cases on collateral review is of no consequence for purposes of 20 whether Petitioner had an unobstructed shot to assert his current claim. The 21 change in the law after the first § 2255 motion required to invoke the escape 22 hatch “is not to be equated to a difference between the law in the circuit in 23 which the prisoner was sentenced and the law in the circuit in which he is 24 incarcerated.” In Re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). “When 25 there is a circuit split, there is no presumption that the law in the circuit that 26 favors the prisoner is correct, and hence there is no basis for supposing him 27 28 1 unjustly convicted merely because he happened to have been convicted in the 2 other circuit.” Id. 3 B. Transfer of this Action is Inappropriate. 4 The only remaining question is whether this action should be 5 transferred to the District of Nebraska. See 28 U.S.C. § 1631. “Because the 6 statute’s language is mandatory, federal courts should consider transfer 7 without motion by the parties.” Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 8 (9th Cir. 2001). “Transfer is appropriate under § 1631 if three conditions are 9 met: (1) the transferring court lacks jurisdiction; (2) the transferee court could 10 have exercised jurisdiction at the time the action was filed; and (3) the 11 transfer is in the interest of justice.” Id. 12 The interest of justice would not be served by transferring this action to 13 the sentencing district. Since Petitioner has already filed two § 2255 motions there, he would have to obtain permission to file a successive § 2255 motion in 14 that court. A successive motion would have to be certified by the Eighth 15 Circuit to contain: 16 (1) newly discovered evidence that, if proven and viewed in light 17 of the evidence as a whole, would be sufficient to establish by 18 clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or 19 20 (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously 21 unavailable. 22 28 U.S.C. § 2255(h). Neither requirement would be met. Petitioner has not 23 brought forward any newly discovered evidence of his actual innocence. And 24 the Eighth Circuit has held that Mathis and Descamps did not announce a 25 new rule of constitutional law for purposes of a successive § 2255 motion. See 26 Martin v United States, 904 F.3d 594, 597 (8th Cir. 2018). Petitioner 27 therefore would be unable to obtain permission from the Eighth Circuit to file 28 a successive § 2255 motion in the sentencing court. See Copeland v. Martinez, ! || 2020 WL 2097745, at *3 (C.D. Cal. Apr. 30, 2020) (transfer of successive 2 || § 2255 motion to sentencing court would be futile where petitioner had not 3 || obtained authorization to file motion from the court of appeals). Accordingly, 4 || transfer of this action to any other court is not appropriate. 5 IV. ORDER ° For these reasons, Respondent’s motion to dismiss the Petition is granted and the Petition is dismissed without prejudice for lack of jurisdiction. ° The Court finds that Petitioner has satisfied the requirements for a '0 certificate of appealability and will issue a separate Order. Given Petitioner’s actual innocence claim and the Ninth Circuit’s decision in Allen, this Court 12 finds that jurists of reason would find it debatable whether this Court was 13 correct in its finding that Petitioner failed to show that he has not had an unobstructed procedural shot at presenting his claim and thus does not qualify for application of the savings clause of 28 U.S.C. § 2255(e). Dated: March 29, 2021 Police Lona PATRICIA DONAHUE 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 14