Johnson v. Martinez

• Court: District Court, D. Arizona
• Decided: March 18, 2020
• Docket: 4:17-cv-00136
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Anthony Johnson, No. CV-17-00136-TUC- BGM

10 Petitioner, ORDER 11 v. 12 Filipe Martinez, Warden, 13 Respondent. 14 Currently pending before the Court is Petitioner Anthony Johnson’s pro se 15 amended Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in 16 Federal Custody (“Petition”) (Doc. 7). Respondents have filed a Response to Petition for 17 Writ of Habeas Corpus (“Response”) (Doc. 19) and Petitioner replied (Doc. 22). The 18 Petition is ripe for adjudication. 19 20 I. FACTUAL AND PROCEDURAL BACKGROUND 21 A. Federal Conviction and Sentencing 22 On April 12, 2005, a jury found Petitioner Anthony Johnson guilty of two (2) 23 counts of distributing cocaine base (crack) and one (1) count of possessing cocaine base 24 with an intent to distribute. Response (Doc. 19), USDC Eastern Dist. of Wa., Case No. 25 CR-04-201-JLQ, Verdict Count Two & Verdict Count Three & Verdict Count Four 26 (collectively “Verdict Forms”) (Doc. 19-1) at 3–5.1 For each verdict, the jury found that 27 Petitioner possessed or distributed five (5) grams or more of cocaine base. Id., Verdict 28 1 Page citations refer to the CM/ECF page number for ease of reference. 1 Forms at 3–5. On July 22, 2005, Petitioner was sentenced to 240 months incarceration, 2 with all terms to be served concurrently, followed by ten (10) years of supervised release. 3 Id., USDC Eastern Dist. of Wa., Case No. CR-04-201-JLQ, Judgment in a Criminal Case 4 (Doc. 19-1) at 11–12. In calculating Petitioner’s sentence, the sentencing court found 5 Petitioner’s 1994 conviction for Unlawful Possession of Cocaine with Intent to Deliver 6 and 1992 conviction of Solicit to Unlawfully Possess a Controlled Substance with Intent 7 to Deliver constituted felony drug convictions sufficient to render Petitioner a career 8 offender resulting in a five (5) level enhancement to his United States Sentencing 9 Guidelines (“U.S.S.G.”) offense level, as well as an increase in his Criminal History 10 Category. Id., USDC Eastern Dist. of Wa., Case No. CR-04-201-JLQ, Sentencing Mem. 11 (Doc. 19-1) at 7–8. The presumptive term of imprisonment at Petitioner’s enhanced 12 levels pursuant to the U.S.S.G. was 360 months to life. Id., Sentencing Mem. at 7. After 13 weighing mitigating factors and the need for appropriate punishment and deterrence, the 14 sentencing court arrived at the 240 month sentence imposed. Id., Sentencing Mem. at 9. 15 Petitioner appealed his conviction to the Ninth Circuit Court of Appeals, arguing 16 that 1) the district court abused its discretion by excluding an expert audiologist from 17 testifying; 2) the district court abused its discretion by not allowing full cross- 18 examination of the government’s confidential informant; 3) there was insufficient 19 evidence to support his conviction; 4) his Sixth Amendment right to effective counsel 20 was violated; and 5) “the district court erred in by finding that he qualified as a career 21 offender under the sentencing guidelines.” United States v. Johnson, 200 Fed. Appx. 22 705, 706–707 (9th Cir. 2006). The appellate court rejected Petitioner’s arguments and 23 affirmed his convictions and sentence. Id. Petitioner did not petition the Supreme Court 24 of the United States for writ of certiorari. USDC Eastern Dist. of Wa., Case No. CR-04- 25 0201-JLQ, Order Denying Def.’s § 2255 Mots. to Vacate, Set Aside or Correct Sent., and 26 Mot. to Reduce Sent. Concerning Crack Cocaine Amendment (“Section 2255 Order”) 27 (Doc. 19-1) at 17. 28 . . . 1 B. Post-Conviction Filings 2 On January 15, 2008, Petitioner filed a Motion for Inadequate Representation, 3 which the sentencing court construed as a § 2255 motion. See USDC Eastern Dist. of 4 Wa., Case No. CR-04-0201-JLQ, United States v. Johnson, Docket (Doc. 188).2 On 5 January 31, 2008, Petitioner filed a Motion to Reduce Sentence re: Crack Cocaine 6 Offense 18:3582, which was initially filed as a Motion to Vacate, Set Aside, or Correct 7 Sentence Pursuant to 28 U.S.C. § 2255. See USDC Eastern Dist. of Wa., Case No. CR- 8 04-0201-JLQ, United States v. Johnson, Docket (Doc. 190); Response (Doc. 19), USDC 9 Eastern Dist. of Wa., Case No. CR-04-0201-JLQ, Order Denying Def.’s § 2255 Mots. to 10 Vacate, Set Aside or Correct Sent., and Mot. to Reduce Sent. Concerning Crack Cocaine 11 Amendment (“Section 2255 Order”) (Doc. 19-1) at 16. On March 14, 2008, Petitioner 12 filed a Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine 13 Offense 18 U.S.C. § 3582. See USDC Eastern Dist. of Wa., Case No. CR-04-0201-JLQ, 14 United States v. Johnson, Docket (Doc. 193); Response (Doc. 19), Section 2255 Order at 15 16. 16 Petitioner asserted claims alleging 1) ineffective assistance of trial counsel, 2) 17 ineffective assistance of trial counsel because defense counsel later ran for county 18 Prosecutor; 3) Sections 841 and 846, Title 21, United States Code were unconstitutional 19 because they did not require the jury to specify the specific drug amounts; 4) his 20 sentencing as a career offender “was inconsistent with the requirements of 21 U.S.C. § 21 851”; and 5) “he [was] entitled to a reduction in his sentence pursuant to 18 U.S.C. § 22 3582(c)(2) . . . because his sentence was based, at least in part, on the Guideline range for 23 the amount of crack cocaine at issue in his offense.” Response (Doc. 19), Section 2255 24 25 2 “The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately 26 and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. 27 Evid. 201(b). The docket sheet of the United States District Court for the Eastern District of Washington is proper material for judicial notice. See Headwaters Inc. v. U.S. Forest Service, 28 399 F.3d 1047, 1051 n. 3 (taking judicial notice of the docket from a proceeding before another tribunal). 1 Order at 20–25. On August 21, 2008, the sentencing court denied Petitioner’s motions. 2 See Response (Doc. 19), Section 2255 Order. 3 On November 21, 2011, Petitioner filed a second Motion for Reduction of 4 Sentence Pursuant to 18 U.S.C. § 3582(c)(2). See USDC Eastern Dist. of Wa., Case No. 5 CR-04-0201-JLQ, United States v. Johnson, Docket (Doc. 201). On December 28, 2011, 6 the sentencing court denied Petitioner’s motion, noting that he had been sentenced “as a 7 career offender under USSG § 4B1.1 (not drug quantity under § 2D1.1), and because 8 Amendment 750 (Parts A and C only) does not affect Defendant’s guideline range[.]” 9 Response (Doc. 19), USDC Eastern Dist. of Wa., Case No. CR-04-0201-JLQ, Order 10 Denying Def.’s Mot. to Reduce Sent. (Doc. 19-1) at 29. On January 17, 2012, Petitioner 11 filed a notice of appeal with the Ninth Circuit Court of Appeals. See USDC Eastern Dist. 12 of Wa., Case No. CR-04-0201-JLQ, United States v. Johnson, Docket (Doc. 209). On 13 May 23, 2012, Petitioner’s appeal was dismissed for failure to prosecute. United States 14 Ct. App., 9th Cir., Case No. 12-30029, United States v. Johnson, Order 5/23/2012. 15 On June 18, 2019, Petitioner filed a Motion for Imposition of a Reduced Sentence 16 Pursuant to section 404 of the First Step Act. See USDC Eastern Dist. of Wa., Case No. 17 CR-04-0201-JLQ, United States v. Johnson, Docket (Doc. 222). Petitioner sought a 18 reduction of sentence based on his eligibility under the First Step Act having been 19 convicted of a crack-cocaine offense. See id. On October 24, 2019, the Court reduced 20 Petitioner’s total term of incarceration from 240 months to 228 months. See USDC 21 Eastern Dist. of Wa., Case No. CR-04-0201-JLQ, United States v. Johnson, Order 22 10/24/2019 (Doc. 229). 23 C. The Instant Habeas 24 On June 5, 2017, Petitioner filed his amended Petition Under 28 U.S.C. § 2241 for 25 a Writ of Habeas Corpus by a Person in Federal Custody (“Petition”) (Doc. 7). Petitioner 26 asserts that his conviction of Solicit to Possess with Intent to Deliver a controlled 27 substance pursuant to the Revised Code of Washington §§ 9A-28-030 and 69-50-401 no 28 longer constitutes a predicate offense under U.S.S.G. §§ 4B1.1 or 4B1.2. Petition (Doc. 1 7) at 4 (citing Mathis v. United States, — U.S. —, 136 S. Ct. 2243, 195 L. Ed. 2d 604 2 (2016)). Petitioner urges that this conviction “does not qualify as a controlled substance 3 offense under the categorical approach.” Id. Accordingly, Petitioner seeks “immediate 4 resentencing without the career offender enhancement[.]” Id. at 9. 5 6 II. ANALYSIS 7 A. Legal Standards 8 “As a general rule, § 2255 provides the exclusive procedural mechanism by which 9 a federal prisoner may test the legality of detention.” Harrison v. Ollison, 519 F.3d 952, 10 955 (9th Cir. 2008) (quotations and citations omitted). Section 2255 provides that: 11 A prisoner in custody under sentence of a court established by Act of 12 Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United 13 States, or that the court was without jurisdiction to impose such sentence, or 14 that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed 15 the sentence to vacate, set aside or correct the sentence. 16 28 U.S.C. § 2255(a). Usually, “motions to contest the legality of a sentence must be filed 17 under § 2255 in the sentencing court, while petitions that challenge the manner, location, 18 or conditions of a sentence’s execution must be brought pursuant to § 2241 in the 19 custodial court.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (citations 20 omitted); see 28 U.S.C. §§ 2241(d), 2255(a). “Under the savings clause of § 2255, 21 however, a federal prisoner may file a habeas corpus petition pursuant to § 2241 to 22 contest the legality of a sentence where his remedy under § 2255 is ‘inadequate or 23 ineffective to test the legality of his detention.’” Hernandez, 204 F.3d at 864–65 (quoting 24 28 U.S.C. § 2255; then citing Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999)). “We 25 refer to this section of § 2255 as the ‘savings clause[]’ or the ‘escape hatch.’” Harrison, 26 519 F.3d at 956 (quotations and citations omitted). “If a prisoner’s claims qualify for the 27 escape hatch of § 2255, the prisoner may challenge the legality of a sentence through a § 28 2241 petition in the custodial court.” Id. (citations omitted). 1 B. Jurisdiction 2 “[I]n order to determine whether jurisdiction is proper, a court must first determine 3 whether a habeas petition is filed pursuant to § 2241 or § 2255 before proceeding to any 4 other issue.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). 5 Here, Petitioner is a federal prisoner contesting the legality of his sentence by 6 challenging his career offender enhancement, claiming that his prior conviction no longer 7 constitutes a predicate offense. See Petition (Doc. 7) at 4. As such, Petitioner’s request 8 for relief should be asserted under section 2255 in the Eastern District of Washington. 9 Petitioner does not contend otherwise, but rather argues that “[t]he § 2255 remedy is 10 ineffective because [he] has not had an ‘unobstructed procedural shot’ at presenting his 11 Mathis argument to the sentencing court.” Petition (Doc. 7) at 8 (citing Summers v. 12 Feather, 119 F.Supp.3d 1284–89 (D. Ore. 2015)). Therefore, whether this Court has 13 jurisdiction over Petitioner’s section 2241 petition depends on whether section 2255’s 14 escape hatch applies. 15 1. Section 2255 Escape Hatch 16 “The escape hatch permits a federal prisoner to file a habeas corpus petition 17 pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is 18 inadequate or ineffective to test the legality of his detention.” Stephens v. Herrera, 464 19 F.3d 895, 897 (9th Cir. 2006) (quotations and citations omitted). Section 2255’s escape 20 hatch provision provides: 21 An application for a writ of habeas corpus in behalf of a prisoner 22 who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for 23 relief, by motion, to the court which sentenced him, or that such court has 24 denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. 25 26 28 U.S.C. § 2255 (e). The Ninth Circuit Court of Appeals “ha[s] held that a motion 27 meets the escape hatch criteria of § 2255 when a petitioner (1) makes a claim of actual 28 innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.” 1 Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008) (quotations and citations omitted). 2 2. Actual Innocence 3 “In this circuit, a claim of actual innocence for purposes of the escape hatch of § 4 2255 is tested by the standard articulated by the Supreme Court in Bousley v. United 5 States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)[.]” Stephens v. Herrera, 6 464 F.3d 895, 898 (9th Cir. 2006). “To establish actual innocence, petitioner must 7 demonstrate that, in light of all the evidence, it is more likely than not that no reasonable 8 juror would have convicted him.” Bousley, 523 U.S. at 623, 118 S. Ct. at 1611 9 (quotations and citations omitted). “A petitioner is actually innocent when he was 10 convicted for conduct not prohibited by law.” Alaimalo v. United States, 645 F.3d 1042, 11 1047 (9th Cir. 2011) (citations omitted). “It is important to note . . . that ‘actual 12 innocence’ means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 13 623, 118 S. Ct. at 1611 (citations omitted). 14 Here, “Petitioner asserts that, in the wake of Mathis, if he were sentenced today by 15 the courts for distribution of cocaine base and attempt to distribute more than 8 grams but 16 less than 50 grams of cocaine base, 21 U.S.C. § 841(b)(1)(B), the applicable statutory 17 guideline range would be 151–188 months.” Reply (Doc. 22) at 5. Petitioner further 18 urges that this “misapplication of the career offender guideline presents a cognizable, 19 non-constitutional miscarriage of justice.” Id. (citations omitted). As such, “Petitioner 20 makes a claim regarding his sentence, rather than his offense of conviction, but this is not 21 a claim of actual innocence as that term is meant in the context of section 2255’s escape 22 hatch.” Jones v. Langford, 2017 WL 3575705, at *4 (C.D. Cal. July 10, 2017). 23 Petitioner’s claim that one of his prior conviction no longer qualifies as a drug trafficking 24 offense, “and that he was therefore incorrectly treated as a career offender, is a purely 25 legal claim that has nothing to do with factual innocence.” Marrero v. Ives, 682 F.3d 26 1190, 1193 (9th Cir. 2012). As such, “it is not a cognizable claim of ‘actual innocence’ 27 for the purposes of qualifying to bring a § 2241 petition under the escape hatch.” Id. 28 . . . 1 3. Unobstructed Procedural Shot 2 The second requirement for the § 2255 escape hatch is for Petitioner to not have 3 had an unobstructed procedural shot at presenting his claim. Harrison v. Ollison, 519 4 F.3d 952, 959 (9th Cir. 2008). Section 2255’s escape hatch provision is “narrow” and its 5 “remedy is not inadequate or ineffective merely because § 2255’s gatekeeping provisions 6 prevent the petitioner from filing a second or successive petition.” Ivy v. Pontesso, 328 7 F.3d 1057, 1059 (9th Cir. 2003) (quotations and citations omitted). “[T]he general rule in 8 this circuit is that the ban on unauthorized second or successive petitions does not per se 9 make § 2255 inadequate or ineffective.” Stephens v. Herrera, 464 F.3d 895, 898 (9th 10 Cir. 2006) (quotations and citations omitted) (alterations in original). The question is 11 “whether [Petitioner’s] actual innocence claim was unavailable to him during his direct 12 appeal and his first § 2255 motion.” Alaimalo v. United States, 645 F.3d 1042, 1047 (9th 13 Cir. 2011). In making this determination, the Court considers “(1) whether the legal basis 14 for petitioner’s claim did not arise until after he had exhausted his direct appeal and first 15 § 2255 motion, and (2) whether the law changed in any way relevant to petitioner’s claim 16 after that first § 2255 motion.” Harrison, 519 F.3d at 960 (internal quotations and 17 citations omitted). 18 Petitioner asserts that the statutory interpretation in the Supreme Court’s Mathis 19 decision resulted in one of his prior felony convictions no longer constituting a predicate 20 offense for a career offender enhancement. Petition (Doc. 7) at 4. Petitioner further 21 notes that “[t]he Mathis case was not decided until after [he] had exhausted his direct 22 appeal and § 2255 proceedings.” Id. at 8. The Mathis decision recognized its foundation 23 in long standing precedent: 24 For more than 25 years, we have repeatedly made clear that application of 25 [Armed Career Criminal Act (“ACCA”)] involves, and involves only, comparing elements. Courts must ask whether the crime of conviction is 26 the same as, or narrower than, the relevant generic offense. They may not 27 ask whether the defendant’s conduct—his particular means of committing the crime—falls within the generic definition. And that rule does not 28 change when a statute happens to list possible alternative means of 1 commission: Whether or not made explicit, the remain what they ever were—just the facts, which ACCA (so we have held, over and over) does 2 not care about. 3 4 Mathis, — U.S. at —, 136 S. Ct. 2257. The Mathis court observed that “Taylor3 set out 5 the essential rule governing ACCA cases more than a quarter century ago” and 6 emphasized its reliance on those longstanding principles. Mathis, — U.S. at —, 136 S. 7 Ct. 2251. Therefore, the “material change in the law” that Petitioner suggests Mathis 8 represents does not exist. The Mathis decision does not announce a new rule of law, 9 rather “[t]o the extent that Mathis did anything to the ACCA sentencing provision[,] . . . it 10 merely clarified the provision’s scope by providing an example of how preexisting law 11 should apply to a possible predicate offense.” Jones v. Langford, 2017 WL 3575705, at 12 *6 (C.D. Cal. July 10, 2017). Petitioner could have raised the same arguments regarding 13 his predicate offenses on direct appeal or in his first section 2255 motion, and as such, 14 cannot be said to have lacked an unobstructed procedural shot to present his claim. 15 Accordingly, Petitioner does not qualify for section 2255’s escape hatch. 16 4. Conclusion 17 Plaintiff does not meet the criteria for section 2255’s escape hatch. He cannot 18 show either actual innocence or an unobstructed procedural shot at presenting his claim. 19 As such, this court lacks jurisdiction over Petitioner’s petition. 20 21 III. DISMISSAL VERSUS TRANSFER 22 In light of this Court’s conclusion that the Petition does not qualify for section 23 2255’s escape hatch, if he is to proceed at all, it must be before his sentencing court in the 24 Eastern District of Washington. As such, the Court must determine whether transfer of 25 this action to the sentencing court or dismissal is appropriate. See 28 U.S.C. § 1631. 26 “Transfer is appropriate under § 1631 if three conditions are met: (1) the transferring 27 court lacks jurisdiction; (2) the transferee court could have exercised jurisdiction at the 28 3 Taylor v. United States, 495 U.S. 575, 598, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990). 1 time the action was filed; and (3) the transfer is in the interest of justice.” Cruz-Aguilera 2 v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001) (citations omitted). This Court lacks 3 jurisdiction over the petition, satisfying the first criteria. 4 The second criteria is not met, because this Petition would be a second or 5 successive motion in the Eastern District of Washington since Petitioner has previously 6 filed and was denied relief on a section 2255 motion. Petitioner would have to seek and 7 obtain authorization from the Ninth Circuit in order to proceed. See 28 U.S.C. § 2255(h). 8 “If the petitioner does not first obtain [the circuit court’s] authorization, the district court 9 lacks jurisdiction to consider the second or successive application.” United States v. 10 Lopez, 577 F.3d 1053, 1061 (9th Cir. 2009) (citations omitted). The Ninth Circuit docket 11 does not indicate that Petitioner has attempted to obtain authorization, and the Eastern 12 District of Washington could not exercise jurisdiction over this action. 13 Finally, because the transferee court would not be able to exercise jurisdiction 14 over the instant case, transfer of the case would not further the interests of justice. 15 Accordingly, dismissal of the instant Petition (Doc. 7) is warranted. 16 17 IV. CERTIFICATE OF APPEALABILITY 18 “[T]he plain language of [28 U.S.C.] § 2253(c)(1) does not require a petitioner to 19 obtain a [certificate of appealability] in order to appeal the denial of a § 2241 petition.” 20 Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008). “Nor is there any other statutory 21 basis for imposing a [certificate of appealability] requirement on legitimate §2241 22 petitions. Although state prisoners proceeding under § 2241 must obtain a [certificate of 23 appealability], see § 2253(c)(1)(A), there is no parallel requirement for federal prisoners.” 24 Id. When a Petitioner brings a section 2241 petition which challenges the legality of his 25 underlying conviction and sentence, and is therefore properly characterized as a section 26 2255 motion, this Court must determine whether a certificate of appealability is required. 27 Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). 28 Here, the Court has determined that this Petition is properly construed as one || pursuant to 28 U.S.C. § 2255. As such, the Court will determine whether a certificate of appealability should issue. “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it 5 || debatable whether the petition states a valid claim of the denial of a constitutional right || and that jurists of reason would find it debatable whether the district court was correct in || its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604, 146 8 || L. Ed. 2d 542 (2000). It is not debatable that Petitioner cannot make a showing of actual innocence. As such, a certificate of appealability will be denied. 10 V. CONCLUSION 12 Based upon the foregoing, IT IS HEREBY ORDERED that: 13 1) Petitioner’s Petition (Doc. 7) is DISMISSED for lack of jurisdiction; 14 2) A Certificate of Appealability is DENIED and shall not issue; and 15 3) The Clerk of the Court shall enter judgment accordingly and close its file in 16 this matter. 17 Dated this 17th day of March, 2020. 18 C | 0 ) 0 19 Honorable Bruce G. Macdonald 0 United States Magistrate Judge 21 22 23 24 25 26 27 28

-ll-