Smith v. Von Blanckensee

• Court: District Court, D. Arizona
• Decided: August 27, 2021
• Docket: 4:19-cv-00590
• Status: Unknown

Opinion

1 WO 2

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

9 Ricky Randall Wrex Smith, No. CV-19-00590-TUC-RM 10 Petitioner, ORDER 11 v. 12 Barbara Von Blanckensee, 13 Respondent. 14

15 On December 20, 2019, Petitioner Ricky Randall Wrex Smith filed a Petition for 16 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) On April 9, 2020, Petitioner 17 filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (the 18 “Petition”). (Doc. 8.) Respondent filed an Answer on September 18, 2020 (Doc. 21), and 19 Petitioner filed a Reply on October 2, 2020 (Doc. 26). On May 6, 2021, Magistrate Judge 20 Eric J. Markovich issued a Report and Recommendation (“R&R”) (Doc. 29), 21 recommending that this Court dismiss the Petition for lack of jurisdiction. Petitioner filed 22 a timely Objection (Doc. 30), Respondent filed a Response to the Objection (Doc. 31), and 23 Petitioner filed a Clarification to the Objection (Doc. 32). For the following reasons, 24 Petitioner’s Objection will be overruled, the R&R will be adopted, and the § 2241 Petition 25 will be denied. 26 I. Standard of Review 27 A district judge “may accept, reject, or modify, in whole or in part,” a magistrate 28 judge’s proposed findings and recommendations. 28 U.S.C. § 636(b)(1). The district judge 1 must “make a de novo determination of those portions” of a magistrate judge’s “report or 2 specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 3 636(b)(1). The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil 4 Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself 5 that there is no clear error on the face of the record in order to accept the recommendation” 6 of a magistrate judge. Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 addition. 7 See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection 8 or only partial objection is made, the district court judge reviews those unobjected portions 9 for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. 10 Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and 11 Recommendation). 12 II. Background 13 Petitioner pleaded guilty to a three-count indictment charging him with (1) 14 production of child pornography, 18 U.S.C. § 2251(a); (2) transportation of child 15 pornography, 18 U.S.C. § 2252A(a)(1); and (3) possession of child pornography, 18 U.S.C. 16 § 2252(a)(5)(B). (Doc. 21-2.) The State voluntarily dismissed Counts 2 and 3. (Doc. 21-3 17 at 1.) The United States District Court for the Middle District of Alabama entered judgment 18 finding Petitioner guilty on Count 1—the production of child pornography in violation of 19 18 U.S.C. § 2251(a)—and sentenced Petitioner to a term of life imprisonment. (Id. at 2.) 20 Petitioner did not file a direct appeal. Petitioner is currently incarcerated at the United 21 States Penitentiary in Tucson, AZ, within the District of Arizona. (Doc. 29 at 1.) 22 On November 13, 2012 in the Middle District of Alabama, Petitioner filed his first 23 petition pursuant to 28 U.S.C. § 2255 challenging his conviction and resultant life sentence. 24 Smith v. U.S., 1:12-CV-1006-WKW, 2015 WL 438970, at *1 (M.D. Ala. Feb. 3, 2015). 25 The court denied that petition as time-barred because it was filed after expiration of the 26 one-year limitation period set forth in 28 U.S.C. § 2255(f). Smith v. U.S., 1:12-CV-1006- 27 WKW, 2015 WL 438970, at *1 (M.D. Ala. Feb. 3, 2015). Petitioner filed second, third, 28 and fourth unsuccessful § 2255 petitions in the Middle District of Alabama, all of which 1 were dismissed as “a successive motion filed without the required appellate court 2 authorization.” Rex Smith v. U.S., 1:18CV538-WKW, 2018 WL 3421599, at *1 (M.D. Ala. 3 June 13, 2018), report and recommendation adopted sub nom. Smith v. U.S., 1:18-CV-538- 4 WKW, 2018 WL 3420804 (M.D. Ala. July 13, 2018). 5 Petitioner alleges in the instant § 2241 petition that pursuant to the Ninth Circuit’s 6 recent decision in United States v. Schopp, 938 F.3d 1053 (9th Cir. 2019), his prior state 7 convictions “could not be used to enhance [his] sentence” under 18 U.S.C. § 2251(e) 8 because they are not a categorical match to the federal offense of production of child 9 pornography. (Doc. 8 at 4.) Petitioner argues that he was therefore illegally sentenced to 10 life imprisonment. (Id.) Petitioner requests that the Court “vacate [his] life sentence and 11 remand for resentencing.” (Id. at 9.) Finally, Petitioner contends that he is entitled to bring 12 this § 2241 petition pursuant to the savings clause because Schopp materially changed the 13 law governing his sentence after his first § 2255 petition. (Id. at 5.) The R&R rejects 14 Petitioner’s arguments. 15 The R&R finds that the Court lacks jurisdiction over the § 2241 petition and 16 recommends that it be dismissed. (Doc. 29 at 2.) In reaching this conclusion, the R&R finds 17 that Petitioner was sentenced under 18 U.S.C. § 3559(e), not 18 U.S.C. § 2251(e) as 18 Petitioner asserts in his Petition. (Id.) Because Schopp only construed the sentencing 19 enhancement in § 2251(e) and had no impact on § 3559(e), “Petitioner did not lack an 20 unobstructed procedural shot to present his claim for relief” in a timely § 2255 petition. 21 (Id.) Therefore, Petitioner was not permitted to bring this § 2241 petition under the escape 22 hatch. (Id. at 9-10.) 23 In his Objection, Petitioner argues that because his offense took place on or before 24 May 2000—before § 3559(e) was enacted—his life sentence violates the Ex Post Facto 25 Clause. (Doc. 30 at 1; Doc. 32 at 2.) Alternatively, Petitioner argues that “a constructive 26 amendment in violation of the Fifth Amendment’s Grand Jury Clause would have had to 27 occur at sentencing on Count 1 only.” (Doc. 32 at 2.) In response to the Objection, 28 Respondent maintains that the R&R correctly concludes that Petitioner was sentenced 1 under § 3559(e). (Doc. 31 at 2.)1 Respondent specifies that “the statute is mentioned two 2 times in the Pre-Sentence Report” and “the Alabama district court expressly referred to § 3 3559(e) during Smith’s sentencing.” (Id. at 1-2.) Therefore, Respondent asserts that the 4 Court should dismiss the Petition. (Id. at 2.) 5 III. Applicable Law 6 To determine jurisdiction, district courts must first determine whether a petitioner 7 was permitted to bring a habeas corpus petition under 28 U.S.C. § 2241 pursuant to the 8 escape hatch, or whether the petition should be construed under 28 U.S.C. § 2255. 9 Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). This is the decisive 10 jurisdictional question because “[g]enerally, motions to contest the legality of a sentence 11 must be filed under § 2255 in the sentencing court, while petitions that challenge the 12 manner, location, or conditions of a sentence’s execution must be brought pursuant to § 13 2241 in the custodial court.” Id. at 864. A petitioner may not bring a second or successive 14 § 2255 petition without first obtaining certification from “a panel of the appropriate court 15 of appeals.” 28 U.S.C. § 2255(h); Harrison v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008). 16 A petitioner cannot avoid these restrictions by filing a § 2241petition. Stephens v. Herrera, 17 464 F.3d 895, 897 (9th Cir. 2006). 18 However, under the “savings clause” or “escape hatch” of § 2255, a prisoner may 19 contest the legality of his sentence by filing a petition pursuant to § 2241 “when the 20 prisoner’s remedy under § 2255 is “inadequate or ineffective to test the legality of his 21 detention.” Harrison, 519 F.3d at 956 (quoting 28 U.S.C. § 2255). The Ninth Circuit has 22 held that “a § 2241 petition is available under the escape hatch of § 2255 when a petitioner 23 (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot 24 at presenting that claim.” Stephens, 464 F.3d at 898 (internal quotation marks omitted). 25 To successfully make a claim of actual innocence, a petitioner “must demonstrate 26 that, in light of all the evidence, it is more likely than not that no reasonable juror would 27 1 Although Respondent refers to Petitioner being sentenced under 18 U.S.C. § 3539(e), it 28 appears that this is a typo and that Respondent intended to refer to 18 U.S.C. § 3559(e). (See Doc. 29 at 7.) 1 have convicted him.” Id. The Ninth Circuit has held that a claim of actual innocence may 2 be based on a petitioner being found statutorily ineligible for a sentencing enhancement 3 where a retroactive change in the law has rendered a petitioner factually innocent of a 4 predicate offense. Allen v. Ives, 950 F.3d 1184, 1190 (9th Cir. 2020). “That is, he is actually 5 innocent of the enhancement.” Id. at 1189. 6 To determine whether a petitioner has had an unobstructed procedural shot at 7 presenting a claim of actual innocence, courts consider: “(1) whether the legal basis for 8 petitioner’s claim did not arise until after he had exhausted his direct appeal and first § 9 2255 motion; and (2) whether the law changed in any way relevant to petitioner’s claim 10 after that first § 2255 motion.” Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008) 11 (internal quotation marks omitted). A petitioner does not have an unobstructed shot to 12 present his claim if, after a prisoner’s direct appeal and first § 2255 motion, an intervening 13 court decision “effects a material change in the applicable law.” Allen, 950 F.3d at 1190 14 (internal quotation marks and citation omitted). 15 A § 2241 petition pursuant to the escape hatch must be filed in the custodial court. 16 Hernandez, 204 F.3d at 865. If the escape hatch does not apply, however, a § 2241 petition 17 contesting the legality of a sentence must be construed under § 2255, such that jurisdiction 18 lies only in the sentencing district. Id. 19 IV. Analysis 20 As a threshold matter, Petitioner’s argument that he was sentenced under § 2251(e) 21 and therefore can rely on Schopp to support a showing of actual innocence is meritless. 22 The offender in Schopp was sentenced under § 2251(e). United States v. Schopp, 938 F.3d 23 1053, 1056 (9th Cir. 2019). However, as the R&R finds, “[w]hile Petitioner was charged 24 with production of child pornography in violation of 18 U.S.C. § 2251(a), Petitioner was 25 sentenced under 18 U.S.C. § 3559(e).” (Doc. 29 at 7.) The record supports this finding. 26 Section 3559(e) provides that “[a] person who is convicted of a Federal sex offense 27 in which a minor is the victim shall be sentenced to life imprisonment if the person has a 28 prior sex conviction in which a minor was the victim.” At Petitioner’s sentencing, the State 1 specified that, “Under Title 18, United States Code, Section 3559(e), [Petitioner] qualifies 2 for a mandatory life sentence in this case if several elements are met.” (Doc. 28-1 at 13.) 3 The State noted that the first element of § 3559(e) is met because the offense Petitioner 4 was convicted of in the instant case, § 2251(a), is a qualifying federal sex offense in which 5 the victim was a minor. (Id.) Next, the State noted that the second element is met because 6 Petitioner’s two prior state felony convictions qualify as prior sex convictions in which a 7 minor was the victim under § 3559. (Id.) The court concurred with the State’s analysis that 8 Petitioner met the criteria to be sentenced under 3559(e)(1) and concluded: “The Court 9 does make the finding as part of the sentencing in this case that the defendant is subject to 10 mandatory life imprisonment for repeated sex offenses against children under Section 11 3559(e)(1).” (Id. at 14.) 12 The distinct elements of § 3559(e) and § 2251(e) provide further support that 13 Petitioner was sentenced under § 3559(e) and not § 2251(e). Section 2251(e) states that a 14 defendant with “2 or more prior convictions…under the laws of any State relating to the 15 sexual exploitation of children…shall be…imprisoned not less than 35 years nor more than 16 life.” The Ninth Circuit in Schopp found that the defendant’s prior state offenses were not 17 a categorical match to the federal definition of “sexual exploitation of children” and 18 therefore could not serve as predicate offenses for the multiple conviction enhancement in 19 § 2251(e). Schopp, 938 F.3d at 1063, 1069. Petitioner relies on this reasoning to argue that 20 his sentence was improperly enhanced pursuant to § 2251(e). However, unlike § 2251(e), 21 § 3559 does not include the term “sexual exploitation of children,” except in reference to 22 § 2251 in defining “Federal sex offense.” See 18 U.S.C. 3559(e)(2)(A). Nor is the term 23 “sexual exploitation of children” present in Petitioner’s sentencing transcript. Rather, the 24 sentencing court invoked § 3559(e) as described above. Based on the foregoing, it is clear 25 that Petitioner was sentenced to mandatory life imprisonment pursuant to § 3559(e). See 26 also Smith, 2015 WL 438970 at *3 (“[T]he sentence actually imposed against [Petitioner] 27 was not controlled by his sentencing range calculated under the guidelines, but rather by 28 the statutory provisions of 18 U.S.C. § 3559(e), which mandated that he be sentenced to 1 life in prison as a repeat sex offender against children.”). 2 As the R&R finds, “[b]ecause Schopp only considered the sentencing enhancement 3 in § 2251(e), Schopp did not materially change the law relating to Petitioner’s life sentence” 4 under § 3559(e). (Doc. 29 at 8.) Petitioner’s prior state sex convictions involving a minor 5 remain predicate crimes that qualify Petitioner for the mandatory life sentence he received 6 under § 3559(e). Thus, Petitioner has no basis to claim that he is “actually innocent” of the 7 sentence that was imposed. 8 Even if the Petitioner had successfully made a claim of actual innocence, Petitioner 9 fails to satisfy the escape hatch because he had an unobstructed procedural shot at 10 presenting his claim of actual innocence. As previously established, Schopp, which 11 Petitioner relies on to make his case, has no bearing on his sentence. Additionally, the law 12 has not changed in any relevant way since Petitioner’s first § 2255 petition. Thus, Petitioner 13 was not permitted to bring a § 2241 petition in the custodial court pursuant to the escape 14 hatch because Petitioner had an unobstructed procedural shot to present his actual 15 innocence claim in a timely § 2255 petition. Accordingly, the instant petition must be 16 construed as a petition under § 2255. 17 Because § 2255 petitions must be filed in the sentencing court, the District of 18 Arizona as the custodial court lacks jurisdiction over the petition. The Middle District of 19 Alabama, as the sentencing court, has exclusive jurisdiction to hear Petitioner’s claim. 20 Transfer to the sentencing court is appropriate if three conditions are met: “(1) the 21 transferring court lacks jurisdiction; (2) the transferee could have exercised jurisdiction at 22 the time the action was filed; and (3) the transfer is in the interest of justice.” Cruz-Aguilera 23 v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001) (citing Kolek v. Engen, 869 F.2d 1281, 1284 24 (9th Cir. 1989)). 25 Here, the first factor—that the transferring court lacks jurisdiction—is met. The 26 second condition, however, is not met. The transferee could not have exercised jurisdiction 27 at the time the action was filed because the action constitutes a successive § 2255 petition, 28 which has not been authorized by the Eleventh Circuit. The third condition is not met ! because the Middle District of Alabama would not be able to exercise jurisdiction over the 2 instant petition and therefore transfer would not be in the interest of justice. Accordingly, 4 IT IS ORDERED that Petitioner’s Objection (Doc. 30) is overruled. > IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 29) is 6 accepted and adopted in full. IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant 8 to 28 U.S.C. § 2241 (Doc. 8) is denied. The Clerk of Court is directed to enter judgment 9 accordingly and close this case. 10 Although Petitioner has brought his claims in a § 2241 petition, a certificate of i appealability is required where a § 2241 petition attacks the petitioner’s conviction or 12 sentence. See Porter v. Adams, 244 F.3d 1006, 1007 (9th. Cir. 2001). Pursuant to Rule 13 11(a) of the Rules Governing Section 2255 Cases, in the event Movant files an appeal, the \4 Court declines to issue a certificate of appealability because reasonable jurists would not 1S find the Court’s procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 16 484 (2000). Dated this 25th day of August, 2021. 18 19

21 hy □□□□ 79 Honorable Rostsiary □□□□□□□ United States District □□□□□ 23 24 25 26 27 28

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