THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 9 ANTOINE DOUGLASS JOHNSON, CASE NO. C21-5269-JCC 10 Petitioner, ORDER 11 v. 12 UNITED STATES PROBATION AND 14 Respondent.
15 This matter comes before the Court on Petitioner Antoine Johnson’s Objection (Dkt. No. 16 52) to the Report and Recommendation (“R&R”) of the Honorable David W. Christel, United 17 States Magistrate Judge (Dkt. No. 50), recommending that the Court deny Petitioner’s petition 18 for a writ of habeas corpus under 28 U.S.C. § 2241 (Dkt. No. 4) (the “Petition”). For the reasons 19 described below, the Court hereby OVERRULES the objections, ADOPTS the R&R and 20 DENIES the Petition without prejudice. 21 I. BACKGROUND 22 Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2241 to challenge his 2011 23 federal convictions for health care fraud, filing false income taxes, and distribution of controlled 24 substances. (Dkt. No. 4 at 1.) Petitioner claims the prosecution presented false evidence at his trial 25 which “could have affected the judgment of the jury.” (Dkt. No. 1-2 at 4.) Specifically, Petitioner 26 alleges (a) one of the witnesses used a different name when testifying, (b) that witness 1 mislabeled the medical-billing computer program, and (c) a second witness falsely testified to 2 whether the clinic’s certification number was used between August 16, 2007 and April 29, 2010. 3 (Id. at 3–9.) Petitioner appealed his conviction to the Ninth Circuit Court of Appeals. See United 4 States v. Johnson, 540 F. App’x 573 (9th Cir. 2013). The Ninth Circuit affirmed his conviction, 5 holding that there was “plenty of strong evidence proving” that Petitioner committed health care 6 fraud. Id. at 575. 7 Judge Christel recommends that this Court deny the Petition based on Petitioner’s failure 8 to demonstrate that his Petition can properly be brought under § 2241 rather than § 2255; if it 9 cannot, then the Court lacks jurisdiction over his Petition as a forbidden “second or successive” 10 motion. (Dkt. No. 50 at 4–6.) Petitioner objects to Judge Christel’s R&R, claiming that (1) he 11 indeed alleges an actual innocence claim as needed to bring a petition under § 2241; (2) he has 12 not had “an unobstructed procedural shot” at presenting his claims; (3) Judge Christel improperly 13 converted his claim to an “escape hatch” claim (i.e., one for which the Court has jurisdiction 14 under §2241 only if certain requirements are met); (4) Petitioner should be granted leave to 15 amend; and (5) Judge Christel failed to consider Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 16 2003) and Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002).1 18 A. Legal Standard 19 A district court reviews de novo those portions of a magistrate judge’s R&R to which a 20 party properly objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A party properly objects 21 when he or she files “specific written objections” to the magistrate judge’s R&R as required 22 under Federal Rule of Civil Procedure 72(b)(2). In contrast, general objections or summaries of 23
24 1 Petitioner also objects to the R&R’s conclusion that the Court lacks jurisdiction over the Petition and that the Petition is an impermissible attempt to circumvent the procedural limitations 25 on filing multiple § 2255 petitions. (Dkt. No. 52 at 1). However, Petitioner does not present any 26 argument on this objection, which, in any case encompasses his other objections and rises or falls along with them. 1 arguments previously presented have the same effect as no objection at all since they do not 2 focus the Court’s attention on any specific issues for review. Howard v. Sec’y of Health and 3 Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). 4 B. Petitioner’s Objections 5 Petitioner first objects that Judge Christel erred in not finding a tenable actual innocence 6 claim. (Dkt. No. 52 at 1–3.) A federal prisoner challenging the legality of confinement must 7 generally do so under § 2255; however, a prisoner can use an “escape hatch” to file a petition 8 under § 2241 if the prisoner (1) makes a claim of actual innocence, and (2) has not had an 9 “unobstructed procedural shot” at presenting that claim. Marrero v. Ives, 682 F.3d 1190, 1192 10 (9th Cir. 2012). Petitioner argues that, because Judge Christel “found” that “the prosecutor’s 11 allegedly false statement during closing argument[] could have affected the jury’s verdict” (Dkt. 12 No. 50 at 5 (emphasis original) (cited in Dkt. No. 52 at 3)), he successfully makes a claim of 13 actual innocence. But Judge Christel did not “find” that at all. He was merely restating 14 Petitioner’s own allegations, which, the R&R correctly concludes, go merely to the legal 15 inadequacy of the conviction, not factual innocence. Petitioner’s first objection is thus 17 Petitioner’s second objection, that the same purported “finding” means Petitioner has not 18 received a full and fair opportunity to litigate his claims, (Dkt. No. 52 at 4–5), is likewise 19 OVERRULED because Judge Christel never actually found there was false testimony that could 20 have affected the jury’s verdict. Moreover, even if Petitioner had established that the errors he 21 alleges “could have affected the verdict,” that would be insufficient; the governing standard is 22 whether, in light of all the evidence, “it is more likely than not that no reasonable juror would 23 have convicted” Petitioner. (Dkt. No. 50 at 2–3 (citing Stephens v. Herrera, 464 F.3d 895, 898 24 (9th Cir. 2006)).) 25 Petitioner’s third objection argues that Judge Christel exceeded his authority by 26 recharacterizing Petitioner’s claim as one under § 2255’s “escape hatch.” (Dkt. No. 52 at 5–7.) 1 The Court disagrees. As mentioned, “§ 2255 provides the exclusive procedural mechanism by 2 which a federal prisoner may test the legality of detention.” Harrison v. Ollison, 519 F.3d 952, 3 955–56 (9th Cir. 2008). Section 2255(h) allows “second or successive” habeas petitions only 4 when authorized by the appropriate court of appeals. 28 U.S.C. §§ 2244(a), 2255(h). As 5 mentioned above, an “escape hatch” claim premised on a theory of actual innocence is a narrow 6 exception to that rule and allows “a federal prisoner [to] file a habeas petition under § 2241 to 7 challenge the legality of a sentence when the prisoner’s remedy under § 2255 is ‘inadequate or 8 ineffective to test the legality of his detention.’” Harrison, 519 F.3d at 956 (quoting 28 U.S.C. § 9 2255). Relief is not inadequate under § 2255 merely because § 2255’s general prohibition against 10 second or successive petitions precludes such relief. Ivy v.
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 9 ANTOINE DOUGLASS JOHNSON, CASE NO. C21-5269-JCC 10 Petitioner, ORDER 11 v. 12 UNITED STATES PROBATION AND 14 Respondent.
15 This matter comes before the Court on Petitioner Antoine Johnson’s Objection (Dkt. No. 16 52) to the Report and Recommendation (“R&R”) of the Honorable David W. Christel, United 17 States Magistrate Judge (Dkt. No. 50), recommending that the Court deny Petitioner’s petition 18 for a writ of habeas corpus under 28 U.S.C. § 2241 (Dkt. No. 4) (the “Petition”). For the reasons 19 described below, the Court hereby OVERRULES the objections, ADOPTS the R&R and 20 DENIES the Petition without prejudice. 21 I. BACKGROUND 22 Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2241 to challenge his 2011 23 federal convictions for health care fraud, filing false income taxes, and distribution of controlled 24 substances. (Dkt. No. 4 at 1.) Petitioner claims the prosecution presented false evidence at his trial 25 which “could have affected the judgment of the jury.” (Dkt. No. 1-2 at 4.) Specifically, Petitioner 26 alleges (a) one of the witnesses used a different name when testifying, (b) that witness 1 mislabeled the medical-billing computer program, and (c) a second witness falsely testified to 2 whether the clinic’s certification number was used between August 16, 2007 and April 29, 2010. 3 (Id. at 3–9.) Petitioner appealed his conviction to the Ninth Circuit Court of Appeals. See United 4 States v. Johnson, 540 F. App’x 573 (9th Cir. 2013). The Ninth Circuit affirmed his conviction, 5 holding that there was “plenty of strong evidence proving” that Petitioner committed health care 6 fraud. Id. at 575. 7 Judge Christel recommends that this Court deny the Petition based on Petitioner’s failure 8 to demonstrate that his Petition can properly be brought under § 2241 rather than § 2255; if it 9 cannot, then the Court lacks jurisdiction over his Petition as a forbidden “second or successive” 10 motion. (Dkt. No. 50 at 4–6.) Petitioner objects to Judge Christel’s R&R, claiming that (1) he 11 indeed alleges an actual innocence claim as needed to bring a petition under § 2241; (2) he has 12 not had “an unobstructed procedural shot” at presenting his claims; (3) Judge Christel improperly 13 converted his claim to an “escape hatch” claim (i.e., one for which the Court has jurisdiction 14 under §2241 only if certain requirements are met); (4) Petitioner should be granted leave to 15 amend; and (5) Judge Christel failed to consider Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 16 2003) and Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002).1 18 A. Legal Standard 19 A district court reviews de novo those portions of a magistrate judge’s R&R to which a 20 party properly objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A party properly objects 21 when he or she files “specific written objections” to the magistrate judge’s R&R as required 22 under Federal Rule of Civil Procedure 72(b)(2). In contrast, general objections or summaries of 23
24 1 Petitioner also objects to the R&R’s conclusion that the Court lacks jurisdiction over the Petition and that the Petition is an impermissible attempt to circumvent the procedural limitations 25 on filing multiple § 2255 petitions. (Dkt. No. 52 at 1). However, Petitioner does not present any 26 argument on this objection, which, in any case encompasses his other objections and rises or falls along with them. 1 arguments previously presented have the same effect as no objection at all since they do not 2 focus the Court’s attention on any specific issues for review. Howard v. Sec’y of Health and 3 Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). 4 B. Petitioner’s Objections 5 Petitioner first objects that Judge Christel erred in not finding a tenable actual innocence 6 claim. (Dkt. No. 52 at 1–3.) A federal prisoner challenging the legality of confinement must 7 generally do so under § 2255; however, a prisoner can use an “escape hatch” to file a petition 8 under § 2241 if the prisoner (1) makes a claim of actual innocence, and (2) has not had an 9 “unobstructed procedural shot” at presenting that claim. Marrero v. Ives, 682 F.3d 1190, 1192 10 (9th Cir. 2012). Petitioner argues that, because Judge Christel “found” that “the prosecutor’s 11 allegedly false statement during closing argument[] could have affected the jury’s verdict” (Dkt. 12 No. 50 at 5 (emphasis original) (cited in Dkt. No. 52 at 3)), he successfully makes a claim of 13 actual innocence. But Judge Christel did not “find” that at all. He was merely restating 14 Petitioner’s own allegations, which, the R&R correctly concludes, go merely to the legal 15 inadequacy of the conviction, not factual innocence. Petitioner’s first objection is thus 17 Petitioner’s second objection, that the same purported “finding” means Petitioner has not 18 received a full and fair opportunity to litigate his claims, (Dkt. No. 52 at 4–5), is likewise 19 OVERRULED because Judge Christel never actually found there was false testimony that could 20 have affected the jury’s verdict. Moreover, even if Petitioner had established that the errors he 21 alleges “could have affected the verdict,” that would be insufficient; the governing standard is 22 whether, in light of all the evidence, “it is more likely than not that no reasonable juror would 23 have convicted” Petitioner. (Dkt. No. 50 at 2–3 (citing Stephens v. Herrera, 464 F.3d 895, 898 24 (9th Cir. 2006)).) 25 Petitioner’s third objection argues that Judge Christel exceeded his authority by 26 recharacterizing Petitioner’s claim as one under § 2255’s “escape hatch.” (Dkt. No. 52 at 5–7.) 1 The Court disagrees. As mentioned, “§ 2255 provides the exclusive procedural mechanism by 2 which a federal prisoner may test the legality of detention.” Harrison v. Ollison, 519 F.3d 952, 3 955–56 (9th Cir. 2008). Section 2255(h) allows “second or successive” habeas petitions only 4 when authorized by the appropriate court of appeals. 28 U.S.C. §§ 2244(a), 2255(h). As 5 mentioned above, an “escape hatch” claim premised on a theory of actual innocence is a narrow 6 exception to that rule and allows “a federal prisoner [to] file a habeas petition under § 2241 to 7 challenge the legality of a sentence when the prisoner’s remedy under § 2255 is ‘inadequate or 8 ineffective to test the legality of his detention.’” Harrison, 519 F.3d at 956 (quoting 28 U.S.C. § 9 2255). Relief is not inadequate under § 2255 merely because § 2255’s general prohibition against 10 second or successive petitions precludes such relief. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th 11 Cir. 2003). 12 Because Petitioner has not met the requirements to file a second or successive petition 13 under § 2255(h), Judge Christel had to analyze Petitioner’s claims of actual innocence under 14 § 2255’s escape hatch doctrine. Otherwise, Petitioner’s claims immediately fail under § 2255 as 15 an impermissible “second or successive” petition. Before the Court can consider Petitioner’s 16 assertions that his claim of innocence justifies reaching the merits of the case despite a 17 procedural bar, see Schlup v. Delo, 513 U.S. 298 (1995), the Court must first have jurisdiction. 18 But for the reasons explained above, and as the R&R correctly concludes, the Court does not 19 have jurisdiction under § 2241, because it falls within § 2255’s jurisdictional bar to successive 20 petitions. Petitioner’s third objection is OVERRULED. 21 Fourth, Petitioner objects that Judge Christel’s R&R does not include leave to amend. 22 (Dkt. No. 52 at 7–8.) Because Judge Christel recommends dismissal without prejudice, 23 Petitioner’s objection is misplaced. Dismissal without prejudice dismisses the case “in such a 24 way that the plaintiff may refile the same suit on the same claim [and] does not bar the plaintiff 25 from refiling the lawsuit within the applicable limitations period.” Semtek Intern. Inc. v. 26 Lockheed Martin Corp., 531 U.S. 497, 505–06 (2001). Thus, dismissal without prejudice does 1 not prevent Petitioner from amending his claims and refiling his case. See id. Petitioner’s fourth 2 objection is OVERRULED as moot. 3 Lastly, Petitioner objects that Judge Christel failed to consider Jaramillo and Majoy. 4 Jaramillo dealt with a prisoner’s attempt to bring a Brady2 claim after the petitioner missed 5 required procedural deadlines. 340 F.3d at 879. Petitioner here is not bringing a Brady claim 6 after missing procedural deadlines, so Jaramillo is not analogous. Likewise, Majoy discussed a 7 petitioner’s ability to bring a time-barred habeas petition. 296 F.3d at 772. Petitioner’s habeas 8 Petition is not being denied because it is time-barred, but rather for lack of jurisdiction. So, 9 Petitioner’s reliance on Majoy is also misplaced. Petitioner’s fifth objection is thus 11 C. Certificate of Appealability 12 A petitioner may appeal a district court’s dismissal of his federal habeas petition only 13 after obtaining a certificate of appealability (“COA”) from a district or circuit judge. A COA 14 may issue only where a petitioner has made a “substantial showing of the denial of a 15 constitutional right.” 28 U.S.C. § 2253(c)(3). A petitioner satisfies this standard “by 16 demonstrating that jurists of reason could disagree with the district court’s resolution of his 17 constitutional claims or that jurists could conclude issues presented are adequate to deserve 18 encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). This Court 19 agrees with Judge Christel’s recommendation to deny the issuance of a COA. Petitioner has not 20 demonstrated that reasonable jurists could conclude that the issues he presents deserve 21 encouragement to proceed further. 23 For the foregoing reasons, the R&R (Dkt. No. 50) is ADOPTED and Petitioner’s petition 24 for writ of habeas corpus (Dkt. No. 4) is DENIED without prejudice. A COA is DENIED. All 25 other pending motions on the docket are DENIED as moot. 26 2 Brady v. Maryland, 373 U.S. 83 (1963). 1 2 DATED this 21st day of October 2021. 3 4 5 A 6 7 8 John C. Coughenour 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26