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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10
11 KENNETH GRAHAM, Case No. CV 19-9806-DOC (GJS) 12 Petitioner ORDER DISMISSING PETITION 13 v. WITHOUT PREJUDICE
14 L.J. MILUSNIC, 15 Respondent. 16
17 18 Kenneth Graham (“Graham”) is a federal prisoner incarcerated within this 19 district. He filed a putative 28 U.S.C. § 2241 petition on November 15, 2019 20 (“Petition”) that raises four claims. Ground One challenges the validity of the 21 indictment, arguing that while Graham was convicted as an aider and abettor, the 22 indictment “did not have a principle [sic]” and, further, that the jury was not 23 instructed on aiding and abetting bases for criminal liability. Ground Two alleges 24 that Petitioner’s trial counsel provided ineffective assistance by failing to call alibi 25 witnesses, cross-examine “known drug addicts,” share witness statements with 26 Petitioner, negotiate a plea bargain, check on a DNA warrant that had not been 27 signed by a judge, argue “duel [sic] prosecution,” and make any motions on 28 Petitioner’s behalf. Ground Three asserts that an enhancement imposed pursuant to 1 18 U.S.C. § 924(e) is invalid, because Petitioner did not have three prior violent or 2 serious drug convictions. Finally, Ground Four asserts that Petitioner’s conviction 3 pursuant to 18 U.S.C. § 924(c) is invalid, because there was no violent predicate 4 offense. (Petition at 3-4.) 5 Habeas petitions brought pursuant to Section 2241 may be subjected to the 6 same screening requirements that apply to habeas petitions brought pursuant to 28 7 U.S.C. § 2254. See Rules 1(b) of the Rules Governing Section 2254 Cases in the 8 United States District Courts, 28 U.S.C. foll. § 2254 (which permits this Court to 9 “apply any or all of these rules” to any habeas petition), and Rule 4 of the same 10 (which mandates that a district court dismiss a petition without ordering a 11 responsive pleading where “it plainly appears from the petition and any attached 12 exhibits that the petitioner is not entitled to relief”); see also Bostic v. Carlson, 884 13 F.2d 1267, 1269-70 (9th Cir. 1989) (affirming district court’s dismissal of a Section 14 2241 petition under Habeas Rules 1(b) and 4); Local Rule 72-3.2 (authorizing 15 magistrate judge to prepare for district judge proposed order for summary dismissal 16 and proposed judgment if it plainly appears from the face of the habeas petition that 17 the petitioner is not entitled to relief). The Court has screened the Petition and, for 18 the following reasons, concludes that the Petition must be dismissed summarily. 19 20 BACKGROUND 21 Pursuant to Rule 201 of the Federal Rules of Civil Procedure, the Court takes 22 judicial notice of the federal dockets and filings available through the PACER 23 system. These records show that, in a 2015 federal jury trial in Case No. 1:13-cr- 24 00620-ELH, Graham was convicted in the United States District Court for the 25 District of Maryland (the “Sentencing Court”) of violating 18 U.S.C. §§ 1951(a), 26 924(c), and 922(g) (the “Conviction”). He thereafter received a sentence totalling 27 382 months. Graham appealed, and the United States Court of Appeals for the 28 Fourth Circuit affirmed the Conviction on April 4, 2016 (Case No. 15-4318). 1 On February 16, 2018, Graham filed a 28 U.S.C. § 2255 motion in the 2 Sentencing Court, which he thereafter supplemented through two filings 3 (collectively, the “Section 2255 Motion”). The Section 2255 Motion raised versions 4 of the same claims alleged in the instant Petition as Grounds Two through Four. On 5 October 16, 2018, the Sentencing Court found that the Section 225 Motion was 6 untimely under the 28 U.S.C. § 2255(f) statute of limitations and denied relief. 7 On April 25, 2019, Graham filed a motion in the Fourth Circuit seeking leave 8 to file a second or successive Section 2255 motion again challenging his conviction 9 under 18 U.S.C. § 924(c) (Case No. 19-207). On August 20, 2019, the Fourth 10 Circuit denied Graham leave to file a second or successive Section 2255 motion. 11 12 DISCUSSION 13 Federal courts have an independent obligation to examine their own 14 jurisdiction and may not entertain an action in which jurisdiction is lacking. 15 Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). For federal prisoners 16 wishing to challenge matters related to their convictions and/or sentences, there are 17 two statutory bases for federal court jurisdiction, 28 U.S.C. § 2241 (“Section 2241”) 18 and 28 U.S.C. § 2255 (“Section 2255”). 19 A Section 2241 habeas petition may be filed by a federal prisoner to attack 20 the “execution of his sentence,” but not to attack its validity. White v. Lambert, 370 21 F.3d 1002, 1009 (9th Cir. 2004); Hernandez, 204 F.3d at 864. A motion under 22 Section 2255 generally is the exclusive post-appeal mechanism by which a federal 23 prisoner may challenge the legality of his conviction or sentence. See Muth v. 24 Fondren, 676 F.3d 815, 818 (9th Cir. 2012); Harrison v. Ollison, 519 F.3d 952, 955 25 (9th Cir. 2008). The instant Petition does not attack the execution of Graham’s 26 sentence; instead, the four claims raised in the Petition directly attack the validity of 27 Graham’s Conviction and related sentence. Thus, Graham’s present claims are 28 required to be raised by way of Section 2255 motion rather than Section 2241 1 habeas petition. 2 There is, however, “one exception” to the generally exclusive nature of the 3 Section 2255 remedy for federal prisoners who wish to challenge the validity of 4 their convictions and/or sentences. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 5 2006). Section 2255(e) contains a “savings clause” or “escape hatch,” which allows 6 a federal prisoner to seek Section 2241 relief when a Section 2255 motion is 7 “inadequate or ineffective to test the legality of his detention.” See id.; see also 8 Muth, 676 F.3d at 818; Harrison, 519 F.3d at 956. A finding that Section 2255 is an 9 inadequate or ineffective remedy constitutes “a narrow exception” to the rule that 10 Section 2255 provides a federal prisoner’s exclusive remedy for challenging a 11 conviction and/or sentence. United States v. Pirro, 104 F.3d 297, 299 (9th Cir.
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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10
11 KENNETH GRAHAM, Case No. CV 19-9806-DOC (GJS) 12 Petitioner ORDER DISMISSING PETITION 13 v. WITHOUT PREJUDICE
14 L.J. MILUSNIC, 15 Respondent. 16
17 18 Kenneth Graham (“Graham”) is a federal prisoner incarcerated within this 19 district. He filed a putative 28 U.S.C. § 2241 petition on November 15, 2019 20 (“Petition”) that raises four claims. Ground One challenges the validity of the 21 indictment, arguing that while Graham was convicted as an aider and abettor, the 22 indictment “did not have a principle [sic]” and, further, that the jury was not 23 instructed on aiding and abetting bases for criminal liability. Ground Two alleges 24 that Petitioner’s trial counsel provided ineffective assistance by failing to call alibi 25 witnesses, cross-examine “known drug addicts,” share witness statements with 26 Petitioner, negotiate a plea bargain, check on a DNA warrant that had not been 27 signed by a judge, argue “duel [sic] prosecution,” and make any motions on 28 Petitioner’s behalf. Ground Three asserts that an enhancement imposed pursuant to 1 18 U.S.C. § 924(e) is invalid, because Petitioner did not have three prior violent or 2 serious drug convictions. Finally, Ground Four asserts that Petitioner’s conviction 3 pursuant to 18 U.S.C. § 924(c) is invalid, because there was no violent predicate 4 offense. (Petition at 3-4.) 5 Habeas petitions brought pursuant to Section 2241 may be subjected to the 6 same screening requirements that apply to habeas petitions brought pursuant to 28 7 U.S.C. § 2254. See Rules 1(b) of the Rules Governing Section 2254 Cases in the 8 United States District Courts, 28 U.S.C. foll. § 2254 (which permits this Court to 9 “apply any or all of these rules” to any habeas petition), and Rule 4 of the same 10 (which mandates that a district court dismiss a petition without ordering a 11 responsive pleading where “it plainly appears from the petition and any attached 12 exhibits that the petitioner is not entitled to relief”); see also Bostic v. Carlson, 884 13 F.2d 1267, 1269-70 (9th Cir. 1989) (affirming district court’s dismissal of a Section 14 2241 petition under Habeas Rules 1(b) and 4); Local Rule 72-3.2 (authorizing 15 magistrate judge to prepare for district judge proposed order for summary dismissal 16 and proposed judgment if it plainly appears from the face of the habeas petition that 17 the petitioner is not entitled to relief). The Court has screened the Petition and, for 18 the following reasons, concludes that the Petition must be dismissed summarily. 19 20 BACKGROUND 21 Pursuant to Rule 201 of the Federal Rules of Civil Procedure, the Court takes 22 judicial notice of the federal dockets and filings available through the PACER 23 system. These records show that, in a 2015 federal jury trial in Case No. 1:13-cr- 24 00620-ELH, Graham was convicted in the United States District Court for the 25 District of Maryland (the “Sentencing Court”) of violating 18 U.S.C. §§ 1951(a), 26 924(c), and 922(g) (the “Conviction”). He thereafter received a sentence totalling 27 382 months. Graham appealed, and the United States Court of Appeals for the 28 Fourth Circuit affirmed the Conviction on April 4, 2016 (Case No. 15-4318). 1 On February 16, 2018, Graham filed a 28 U.S.C. § 2255 motion in the 2 Sentencing Court, which he thereafter supplemented through two filings 3 (collectively, the “Section 2255 Motion”). The Section 2255 Motion raised versions 4 of the same claims alleged in the instant Petition as Grounds Two through Four. On 5 October 16, 2018, the Sentencing Court found that the Section 225 Motion was 6 untimely under the 28 U.S.C. § 2255(f) statute of limitations and denied relief. 7 On April 25, 2019, Graham filed a motion in the Fourth Circuit seeking leave 8 to file a second or successive Section 2255 motion again challenging his conviction 9 under 18 U.S.C. § 924(c) (Case No. 19-207). On August 20, 2019, the Fourth 10 Circuit denied Graham leave to file a second or successive Section 2255 motion. 11 12 DISCUSSION 13 Federal courts have an independent obligation to examine their own 14 jurisdiction and may not entertain an action in which jurisdiction is lacking. 15 Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). For federal prisoners 16 wishing to challenge matters related to their convictions and/or sentences, there are 17 two statutory bases for federal court jurisdiction, 28 U.S.C. § 2241 (“Section 2241”) 18 and 28 U.S.C. § 2255 (“Section 2255”). 19 A Section 2241 habeas petition may be filed by a federal prisoner to attack 20 the “execution of his sentence,” but not to attack its validity. White v. Lambert, 370 21 F.3d 1002, 1009 (9th Cir. 2004); Hernandez, 204 F.3d at 864. A motion under 22 Section 2255 generally is the exclusive post-appeal mechanism by which a federal 23 prisoner may challenge the legality of his conviction or sentence. See Muth v. 24 Fondren, 676 F.3d 815, 818 (9th Cir. 2012); Harrison v. Ollison, 519 F.3d 952, 955 25 (9th Cir. 2008). The instant Petition does not attack the execution of Graham’s 26 sentence; instead, the four claims raised in the Petition directly attack the validity of 27 Graham’s Conviction and related sentence. Thus, Graham’s present claims are 28 required to be raised by way of Section 2255 motion rather than Section 2241 1 habeas petition. 2 There is, however, “one exception” to the generally exclusive nature of the 3 Section 2255 remedy for federal prisoners who wish to challenge the validity of 4 their convictions and/or sentences. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 5 2006). Section 2255(e) contains a “savings clause” or “escape hatch,” which allows 6 a federal prisoner to seek Section 2241 relief when a Section 2255 motion is 7 “inadequate or ineffective to test the legality of his detention.” See id.; see also 8 Muth, 676 F.3d at 818; Harrison, 519 F.3d at 956. A finding that Section 2255 is an 9 inadequate or ineffective remedy constitutes “a narrow exception” to the rule that 10 Section 2255 provides a federal prisoner’s exclusive remedy for challenging a 11 conviction and/or sentence. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 12 1997); see also Ivy v. Pontesso, 328 F.3d 1057, 1069 (9th Cir. 2003). 13 The Ninth Circuit has construed the “inadequate or ineffective” language of 14 Section 2255(e) narrowly and made clear that it does not serve as a mechanism for 15 circumventing the procedural limitations on Section 2255 motions. See, e.g., Ivy, 16 328 F.3d at 1059; Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). For 17 example, the Section 2255 remedy is not rendered inadequate or ineffective because 18 a petitioner’s one-year limitations period has run. Holland v. Pontesso, No. 99- 19 15590, 2000 WL 1170161, at *1 (Aug. 17, 2000) (“section 2255 is not inadequate or 20 ineffective merely because Holland has missed the statute of limitations for filing a 21 section 2255 motion”); see also Morales v. Bezy, 499 F.3d 668, 672 (7th Cir. 2007) 22 (when the petitioner’s Section 2255 motion was denied as untimely and he failed to 23 appeal that ruling, he was not permitted to seek relief under Section 2241 by arguing 24 that the timeliness ruling has been incorrect and his Section 2255 remedy was 25 inadequate or ineffective, because a “prisoner cannot be permitted to lever his way 26 into section 2241 by making his section 2255 remedy inadequate”); Hill v. 27 Morrison, 359 F.3d 1089, 1092 (8th Cir. 2003); Cradle v. United States, 290 F.3d 28 536, 539 (3d Cir. 2002). Similarly, a federal prisoner’s inability to obtain appellate 1 certification to bring a second or successive Section 2255 motion does not render 2 the Section 2255 remedy inadequate or ineffective. Lorentsen, 223 F.3d at 953; 3 Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999). “§ 2255’s remedy is not 4 ‘inadequate or ineffective’ merely because § 2255’s gatekeeping provisions prevent 5 the petitioner from filing a second or successive petition.” Ivy, 328 F.3d at 1059. 6 The Ninth Circuit has concluded that the Section 2255 remedy qualifies as 7 inadequate or ineffective only “‘when a petitioner (1) makes a claim of actual 8 innocence, and (2) has not had an unobstructed procedural shot at presenting that 9 claim.’” Harrison, 519 F.3d at 959 (citation omitted); see also Muth, 676 F.3d at 10 819. The petitioner bears the burden of proving the inadequacy or ineffectiveness of 11 the Section 2255 remedy. See Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 12 1963). 13 Graham has not met that burden here, nor can he do so. He raised three of his 14 four claims already in the Sentencing Court through his Section 2255 Motion, and 15 on October 16, 2018, they were found to be untimely. Graham failed to appeal that 16 ruling and it, thus, is final. Graham cannot obtain a second bite of the apple by re- 17 raising his untimely claims in another forum simply because of the fortuity that he 18 has been transferred to a new prison in another district.1 19 Graham asserts that the Section 2255 remedy is inadequate and ineffective for 20 him, because his prior Section 2255 Motion was denied as untimely under the 21 Section 2255(f) limitations period. (Petition at 5.) This argument plainly fails, 22 because the mere fact that a procedural bar – here, the statute of limitations – 23 precludes Section 2255 relief does not render the remedy inadequate or ineffective. 24 See In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998) (rejecting the argument that 25 26 27 1 The fourth claim alleged in the Petition – the Ground One claim challenging Graham’s indictment – was omitted from the Section 2255 Motion but it too would be untimely for the same 28 reasons identified by the Sentencing Court in its October 16, 2018 Order finding the other three claims to be untimely. 1 when the limitations period of Section 2255(f) prevents a prisoner from obtaining 2 relief under Section 2255, he may seek relief under Section 2241, because such a 3 result “would nullify the limitations” provision); see also Ivy, 328 F.3d at 1059; 4 Lorentsen, 223 F.3d at 953. The same conclusion follows with respect to the Fourth 5 Circuit’s recent denial of Graham’s application for leave to file a second or 6 successive Section 2255 motion. The procedural bar resulting from that denial, in 7 itself, is not a basis for finding the Section 2255 remedy to be inadequate and 8 ineffective in this case. See Lorentsen, 223 F.3d at 953; Moore, 185 F.3d at 1055. 9 Critically, Graham does not contend he is actually innocent – the lynchpin 10 requirement in this Circuit for being allowed to seek Section 2241 relief on what 11 effectively is a barred Section 2255 motion. Not could he do so. To establish actual 12 innocence within the meaning of the Section 2255 savings clause, a petitioner must 13 show, by a preponderance of the evidence, “‘that, in light of all the evidence, it is 14 more likely than not that no reasonable juror would have convicted him.’” 15 Stephens, 464 F.3d at 898 (citation omitted); Ivy, 328 F.3d at 1060; Lorentsen, 223 16 F.3d at 954. The Ninth Circuit requires that factual innocence, not mere legal 17 insufficiency, be established. Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) 18 (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). Graham’s claims do not 19 raise any tenable assertion of factual innocence and, instead, complain only of legal 20 defects in his indictment, in the jury instructions, in one of his convictions and his 21 sentence enhancement, and in his counsel’s performance. As Graham’s claims have 22 “nothing to do with factual innocence,” Marrero, 682 F.3d at 1193, they cannot 23 serve as a basis for applying the Ninth Circuit’s “actual innocence” exception for 24 invoking the Section 2255(e) savings clause. 25 There is no basis for finding the Section 2255 remedy to be inadequate and 26 ineffective for Graham and that the instant Petition therefore is cognizable under 27 Section 2241. The Section 2255 remedy was available to Graham, but he exercised 28 it on an untimely basis, and the Fourth Circuit has declined to allow him to file a I || second or successive Section 2255 motion. The Petition is an improper second or 2 || successive Section 2255 motion that this Court and all other district courts lack 3 jurisdiction to consider, because Graham has not obtained leave from the Fourth 4 || Circuit to file it. Accordingly, Section 2241 jurisdiction is lacking and dismissal on 5 || this basis is warranted. 6 For the foregoing reasons, IT IS ORDERED that: the Petition is DISMISSED 7 || for lack of jurisdiction; and Judgment shall be entered DISMISSING THIS 8 || ACTION WITHOUT PREJUDICE 9 10 || DATED: November 20, 2019 Ahi O Cuttin DAVID O. CARTER i UNITED STATES DISTRICT JUDGE 12 3 PRESENTED BY:
. MT || GAIL J. STANDISH 16 |} UNITED STATES MAGISTRATE JUDGE 17 18 19 20 2 The Court acknowledges that the transfer of civil actions to cure jurisdictional defects is 1 permitted by 28 U.S.C. § 1631. Hernandez, 204 F.3d at 865 n.6. Transfer is appropriate under Section 1631 if three conditions are satisfied: (1) the transferring court lacks jurisdiction; (2) the 22 || transferee court could have exercised jurisdiction at the time the action was filed; and (3) the 3 transfer is in the interest of justice. Cruz-Aguilera v. INS, 245 F.3d 1070, 1074 (9th Cir. 2001). Here, the first condition is met, as this Court plainly lacks jurisdiction over the Petition, but the 34 || second and third conditions are not. If the Petition were to be transferred to the Sentencing Court, that Court would lack jurisdiction to consider it, because Graham has not obtained leave from the 25 || Fourth Circuit to bring a second or successive Section 2255 motion. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (when a petitioner has not obtained leave to file a second or successive 26 petition, the district court is “without jurisdiction to entertain it”). Moreover, given the Sentencing 27 Court’s 2018 finding that Graham’s original Section 2255 Motion was untimely, it is readily apparent that any successive such motion also would be untimely. As a result, transfer of the 28 || Petition to the District of Maryland would be futile and not in the interest of justice, and the Court declines to order a transfer that would be futile and inappropriate.