Miller v. Hood

52 F. App'x 71

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2002
• Docket: No. 01-35850; D.C. Nos. CV-00-01015-MFM, CR-92-00106-BBC
• Status: Published

Opinion

MEMORANDUM

**

Robert J. Miller appeals the district court’s dismissal of his 28 U.S.C. § 2241 habeas petition for lack of jurisdiction. We review de novo, see Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988), and we affirm.

Miller contends the district court has jurisdiction to entertain a claim of actual innocence raised in his § 2241 petition pursuant to the savings clause in 28 U.S.C. § 2255, which applies when the § 2255 motion is inadequate or ineffective. We need not reach that argument because Miller has not shown actual innocence of the crimes of conviction. See Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir.2000) (declining to decide whether a prisoner may resort to § 2241 if he is “actually innocent” but never had “an unobstructed procedural shot” at presenting his innocence claim).

Accordingly, the district court properly dismissed Miller’s petition for lack of jurisdiction. See Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir.1987) (commenting that court of appeals may affirm district court on any grounds contained in the record).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.