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9 10 LARNELL LOWE, Case No. 2:21-cv-7593-FLA (MARx) 11 Petitioner, MEMORANDUM AND ORDER 12 v. DISMISSING ACTION 13 UNITED STATES, 14 Respondent. 15 16 17 I. 18 INTRODUCTION 19 On September 20, 2021, Petitioner constructively1 filed the instant Petition for 20 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“section 2241”). ECF Docket 21 No. (“Dkt.”) 1. The Petition alleges Petitioner is actually innocent and that his 22 sentence is illegal. Dkt. 1 at 4–5. On September 30, 2021, the court issued an Order 23 to Show Cause Re: Why this Action Should Not be Dismissed for Lack of Jurisdiction 24 (“OSC”). Dkt. 3. On December 10, 2021, Petitioner filed a Response. Dkt. 7. As 25 26 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. 27 Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). Because petitioner did not date the instant Petition when he signed it, the court cannot determine the constructive filing date in that manner. However, 1 discussed below, the action is DISMISSED without prejudice for lack of subject 2 matter jurisdiction. 3 II. 4 BACKGROUND 5 On November 3, 2004, a jury found Petitioner guilty of: (1) brandishing a 6 firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)) (“Count 7 One”); (2) carjacking (18 U.S.C. § 2119) (“Counts Two and Four”); (3) discharging a 8 firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)) (“Count 9 Three”); and (4) conspiracy to possess firearms during and in relation to a crime of 10 violence (18 U.S.C. § 924(o)) (“Count Five”). Lowe v. United States, No. 1:04-CR- 11 0131, 2020 WL 429777, at *1 (M.D. Pa. Jan. 28, 2020), certificate of appealability 12 denied, No. 20-1311, 2020 WL 4582606 (3d Cir. July 9, 2020). On March 28, 2005, 13 Petitioner was sentenced to 504 months’ imprisonment. Id. The United States Court 14 of Appeals for the Third Circuit affirmed the district court’s judgment as to 15 Petitioner’s convictions. See United States v. Lowe, 222 F. App’x 220 (3d Cir. 2007). 16 On January 28, 2020, Petitioner filed a Motion to Correct Sentence pursuant to 17 28 U.S.C. § 2255 (“section 2255”) in the United States District Court for the Middle 18 District of Pennsylvania, arguing that his consecutive sentences based on 18 U.S.C. § 19 924(c) violate due process and should be vacated based on the United States Supreme 20 Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Lowe v. United 21 States, 2020 WL 429777, at *1. The district court denied Petitioner’s Motion. Id. at 22 *4. 23 On September 20, 2021, Petitioner constructively filed the instant Petition for 24 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“section 2241”). ECF Docket 25 No. (“Dkt.”) 1. The Petition alleges Petitioner is actually innocent and that his 26 sentence is illegal. Dkt. 1 at 4–5. On September 30, 2021, the court issued an Order 27 to Show Cause Re: Why this Action Should Not be Dismissed for Lack of Jurisdiction 1 Re: Dismissal for Lack of Prosecution. Dkt. 5. On December 10, 2021, Petitioner 2 filed a Response. Dkt. 7. Petitioner does not dispute that he challenges the legality of 3 his detention. Rather, Petitioner contends that, because his case is “final in the 3rd 4 Cir.,” he is allowed “to file a (2241) actual innocence claim.” Id. at 3. Petitioner also 5 requests the appointment of counsel to assist him with his Petition. Id. at 1. 6 III. 7 DISCUSSION 8 A. 28 U.S.C. § 2255 MOTION 9 1. Applicable law 10 A petitioner challenging “the manner, location, or conditions of a sentence’s 11 execution” must file a petition for writ of habeas corpus under section 2241 in the 12 custodial court. Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). On the other 13 hand, section 2255 “provides the exclusive procedural mechanism by which a federal 14 prisoner may test the legality of detention.” Lorentsen v. Hood, 223 F.3d 950, 953 15 (9th Cir. 2000). A petitioner challenging “the legality of his sentence” must file a 16 motion to vacate his sentence under section 2255 and “§ 2255 motions must be heard 17 in the sentencing court.” Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 18 2000). 19 There is, however, an exception to this general rule that a section 2255 20 challenge to the legality of detention must be filed in the sentencing court. Under the 21 “escape hatch” of section 2255, a federal prisoner may challenge the legality of 22 detention in the custodial court if, and only if, the remedy under section 2255 in the 23 sentencing court is “inadequate or ineffective to test the legality of his detention.” 28 24 U.S.C. § 2255(e); Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). A prisoner 25 may file under section 2255’s escape hatch in the custodial court “when the prisoner: 26 ‘(1) makes a claim of actual innocence, and (2) has not had an unobstructed 27 procedural shot at presenting that claim.’” Marrero v. Ives, 682 F.3d 1190, 1192 (9th 1 With respect to the first prong of section 2255’s escape hatch, an actual 2 innocence claim requires a petitioner to “demonstrate that, in light of all the evidence, 3 it is more likely than not that no reasonable juror would have convicted him.” 4 Stephens, 464 F.3d at 898 (citing Bousley v. United States, 523 U.S. 614(1998)). “It is 5 important to note ... that ‘actual innocence’ means factual innocence, not mere legal 6 insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citations omitted). 7 With respect to the second prong of section 2255’s escape hatch, whether the 8 petitioner has not had an “unobstructed procedural shot” at presenting his actual 9 innocence claim, the Court must consider: “(1) whether the legal basis for petitioner’s 10 claim did not arise until after he had exhausted his direct appeal and first § 2255 11 motion; and (2) whether the law changed in any way relevant to petitioner’s claim 12 after that first § 2255 motion.” Alaimalo v. United States, 645 F.3d 1042, 1047 (9th 13 Cir. 2011) (internal quotation marks omitted).
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9 10 LARNELL LOWE, Case No. 2:21-cv-7593-FLA (MARx) 11 Petitioner, MEMORANDUM AND ORDER 12 v. DISMISSING ACTION 13 UNITED STATES, 14 Respondent. 15 16 17 I. 18 INTRODUCTION 19 On September 20, 2021, Petitioner constructively1 filed the instant Petition for 20 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“section 2241”). ECF Docket 21 No. (“Dkt.”) 1. The Petition alleges Petitioner is actually innocent and that his 22 sentence is illegal. Dkt. 1 at 4–5. On September 30, 2021, the court issued an Order 23 to Show Cause Re: Why this Action Should Not be Dismissed for Lack of Jurisdiction 24 (“OSC”). Dkt. 3. On December 10, 2021, Petitioner filed a Response. Dkt. 7. As 25 26 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. 27 Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). Because petitioner did not date the instant Petition when he signed it, the court cannot determine the constructive filing date in that manner. However, 1 discussed below, the action is DISMISSED without prejudice for lack of subject 2 matter jurisdiction. 3 II. 4 BACKGROUND 5 On November 3, 2004, a jury found Petitioner guilty of: (1) brandishing a 6 firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)) (“Count 7 One”); (2) carjacking (18 U.S.C. § 2119) (“Counts Two and Four”); (3) discharging a 8 firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)) (“Count 9 Three”); and (4) conspiracy to possess firearms during and in relation to a crime of 10 violence (18 U.S.C. § 924(o)) (“Count Five”). Lowe v. United States, No. 1:04-CR- 11 0131, 2020 WL 429777, at *1 (M.D. Pa. Jan. 28, 2020), certificate of appealability 12 denied, No. 20-1311, 2020 WL 4582606 (3d Cir. July 9, 2020). On March 28, 2005, 13 Petitioner was sentenced to 504 months’ imprisonment. Id. The United States Court 14 of Appeals for the Third Circuit affirmed the district court’s judgment as to 15 Petitioner’s convictions. See United States v. Lowe, 222 F. App’x 220 (3d Cir. 2007). 16 On January 28, 2020, Petitioner filed a Motion to Correct Sentence pursuant to 17 28 U.S.C. § 2255 (“section 2255”) in the United States District Court for the Middle 18 District of Pennsylvania, arguing that his consecutive sentences based on 18 U.S.C. § 19 924(c) violate due process and should be vacated based on the United States Supreme 20 Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Lowe v. United 21 States, 2020 WL 429777, at *1. The district court denied Petitioner’s Motion. Id. at 22 *4. 23 On September 20, 2021, Petitioner constructively filed the instant Petition for 24 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“section 2241”). ECF Docket 25 No. (“Dkt.”) 1. The Petition alleges Petitioner is actually innocent and that his 26 sentence is illegal. Dkt. 1 at 4–5. On September 30, 2021, the court issued an Order 27 to Show Cause Re: Why this Action Should Not be Dismissed for Lack of Jurisdiction 1 Re: Dismissal for Lack of Prosecution. Dkt. 5. On December 10, 2021, Petitioner 2 filed a Response. Dkt. 7. Petitioner does not dispute that he challenges the legality of 3 his detention. Rather, Petitioner contends that, because his case is “final in the 3rd 4 Cir.,” he is allowed “to file a (2241) actual innocence claim.” Id. at 3. Petitioner also 5 requests the appointment of counsel to assist him with his Petition. Id. at 1. 6 III. 7 DISCUSSION 8 A. 28 U.S.C. § 2255 MOTION 9 1. Applicable law 10 A petitioner challenging “the manner, location, or conditions of a sentence’s 11 execution” must file a petition for writ of habeas corpus under section 2241 in the 12 custodial court. Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). On the other 13 hand, section 2255 “provides the exclusive procedural mechanism by which a federal 14 prisoner may test the legality of detention.” Lorentsen v. Hood, 223 F.3d 950, 953 15 (9th Cir. 2000). A petitioner challenging “the legality of his sentence” must file a 16 motion to vacate his sentence under section 2255 and “§ 2255 motions must be heard 17 in the sentencing court.” Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 18 2000). 19 There is, however, an exception to this general rule that a section 2255 20 challenge to the legality of detention must be filed in the sentencing court. Under the 21 “escape hatch” of section 2255, a federal prisoner may challenge the legality of 22 detention in the custodial court if, and only if, the remedy under section 2255 in the 23 sentencing court is “inadequate or ineffective to test the legality of his detention.” 28 24 U.S.C. § 2255(e); Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). A prisoner 25 may file under section 2255’s escape hatch in the custodial court “when the prisoner: 26 ‘(1) makes a claim of actual innocence, and (2) has not had an unobstructed 27 procedural shot at presenting that claim.’” Marrero v. Ives, 682 F.3d 1190, 1192 (9th 1 With respect to the first prong of section 2255’s escape hatch, an actual 2 innocence claim requires a petitioner to “demonstrate that, in light of all the evidence, 3 it is more likely than not that no reasonable juror would have convicted him.” 4 Stephens, 464 F.3d at 898 (citing Bousley v. United States, 523 U.S. 614(1998)). “It is 5 important to note ... that ‘actual innocence’ means factual innocence, not mere legal 6 insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citations omitted). 7 With respect to the second prong of section 2255’s escape hatch, whether the 8 petitioner has not had an “unobstructed procedural shot” at presenting his actual 9 innocence claim, the Court must consider: “(1) whether the legal basis for petitioner’s 10 claim did not arise until after he had exhausted his direct appeal and first § 2255 11 motion; and (2) whether the law changed in any way relevant to petitioner’s claim 12 after that first § 2255 motion.” Alaimalo v. United States, 645 F.3d 1042, 1047 (9th 13 Cir. 2011) (internal quotation marks omitted). 14 2. Analysis 15 Here, Petitioner does not challenge “the manner, location, or conditions of a 16 sentence’s execution.” See Harrison, 519 F.3d at 956. Rather, Petitioner appears to 17 challenge the legality of his 2004 conviction and sentence. See Dkts. 1, 7. Thus, 18 Petitioner cannot proceed in this court, the custodial court, unless section 2255’s 19 “escape hatch” provision applies. See Lorentsen, 223 F.3d at 953. 20 First, Petitioner has not shown “in light of all the evidence, it is more likely 21 than not that no reasonable juror would have convicted him.” Stephens, 464 F.3d at 22 898. Petitioner argues there was insufficient evidence to find that he was guilty of 23 carjacking because he never did or intended to take control of a vehicle. Dkt. 1 at 4. 24 However, Petitioner does not contest that he was factually innocent of any of the 25 other counts of which he was convicted. Furthermore, Petitioner’s argument 26 regarding his illegal sentence is purely legal and, thus, is not cognizable as a claim of 27 “actual innocence.” Marrero, 682 F.3d at 1193 (holding that purely legal argument 1 | regarding sentencing did not go to factual innocence and therefore was not an “actual 2 | innocence” claim). 3 Second, though Petitioner argues actual innocence, Petitioner fails to establish 4 | he lacked an unobstructed procedural shot at presenting his claim, and therefore does 5 | not meet the second prong of the section 2255 escape hatch. See Alaimalo, 645 F.3d 6 | at 1047. The legal basis for Petitioner’s claims all arose before he filed his section 7 | 2255 motion in the Middle District of Pennsylvania. Indeed, Petitioner appears to 8 | have already made the same arguments in prior petitions. See United States v. Lowe, Q | 222 F. App’x at *223 (regarding the sufficiency of the evidence claim); Lowe v. United 10 | States, 2020 WL 429777, at *2—3 (regarding the illegal sentence claim). Thus, the 11 | Petition seeking to challenge Petitioner’ 2004 conviction and sentence is a successive 12 | section 2255 motion disguised as a section 2241 motion, and this Court lacks 13 | jurisdiction over the Petition. See Hernandez, 204 F.3d at 864-65. 14 V. 15 ORDER 16 It is therefore ORDERED that Petitioner’s Motion is DENIED and the 17 | Petition is DISMISSED with prejudice.” 18 | Dated: December 27, 2021 20 21 FERNANDO. AENLLE-ROCHA 29 United States District Judge 23 | Presented bv: 24 | “A33a— 25 | MARGO A.ROCCONI 36 United States Magistrate Judge 27 ype 28 ° The Petition is being dismissed for lack of jurisdiction and therefore Petitioner’s request for appointment of counsel is DENIED as moot. _