Tony Lomeli Ceja v. Mr. Birkholz

• Court: District Court, C.D. California
• Decided: May 3, 2022
• Docket: 2:22-cv-01636
• Status: Unknown

Opinion

Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 1 of 13 Page ID #:44

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TONY LOMELI CEJA, ) NO. CV 22-1636-FWS(E) ) 12 Petitioner, ) ) 13 v. ) ORDER OF DISMISSAL ) 14 MR. BIRKHOLZ, ) ) 15 Respondent. ) ______________________________) 16 17 18 PROCEEDINGS 19 20 Petitioner, a federal prisoner, filed a “Petition for Writ of 21 Habeas Corpus By a Person in State Custody” on March 10, 2022. The 22 Petition seeks to challenge Petitioner’s 2014 conviction in the 23 Southern District of California for unlawful possession of a firearm 24 and conspiracy to distribute methamphetamine. See Lomeli v. United 25 States, 2019 WL 4534825 (S.D. Cal. Sept. 19, 2019). 26 27 On April 6, 2022, Respondent filed “Respondent’s Motion to 28 Dismiss or Transfer Petition for Writ of Habeas Corpus, etc.” On Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 2 of 13 Page ID #:45

1 April 20, 2022, Petitioner filed a “Reply, etc.” 2 3 BACKGROUND 4 5 On May 30, 2014, a jury in the Southern District of California 6 found Petitioner guilty of unlawful possession of a firearm in 7 violation of 18 U.S.C. section 922(g)(1) and conspiracy to distribute 8 methamphetamine in violation of 18 U.S.C. sections 841(a)(1) and 846. 9 See Lomeli v. United States, 2019 WL 4534825, at *1; Docket in United 10 States v. Lomeli, United States District Court for the Southern 11 District of California case number 3:12-cr-02791-JAH (“Petitioner’s 12 criminal case”).1 The court sentenced Petitioner to a ten year prison 13 term for the firearm possession and a concurrent term of 312 months 14 for the drug offense, plus ten years’ supervised release. See Lomeli 15 v. United States, 2019 WL 4534825, at *1; Docket in Petitioner’s 16 criminal case. The United States Court of Appeals for the Ninth 17 Circuit affirmed the judgment on February 18, 2016. See United States 18 v. Lomeli, 637 Fed. App’x 358 (9th Cir. 2016). 19 20 On June 27, 2016, Petitioner filed in the sentencing court a 21 “Motion Under 28 USC § 2255 to Vacate, Set Aside, or Correct Sentence 22 By a Person in Federal Custody,” contending that Petitioner’s sentence 23 was unlawful under Johnson v. United States, 576 U.S. 591 (2015). On 24 January 7, 2019, Petitioner filed a “Motion for Leave to Amend Motion 25 26 1 The Court takes judicial notice of the docket and 27 documents in Petitioner’s criminal case, available on the PACER website at https://pacer.uscourts.gov. See Porter v. Ollison, 28 620 F.3d 952, 954-55 n.1 (9th Cir. 2010) (federal court may take judicial notice of court records). 2 Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 3 of 13 Page ID #:46

1 Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence By a 2 Person in State Custody,” seeking to add claims for alleged 3 ineffective assistance of counsel and alleged denial of equal 4 protection based on asserted evidentiary error. On January 31, 2019, 5 the court granted Petitioner’s motion to amend. On September 19, 6 2019, the court denied Petitioner’s section 2255 motion, as amended. 7 See Lomeli v. United States, 2019 WL 4534825 (S.D. Cal. Sept. 19, 8 2019). 9 10 In the meantime, on October 1, 2018, Petitioner filed in the 11 sentencing court a “Petition for a Writ of Habeas Corpus Under 28 12 U.S.C. § 2241,” challenging the conviction and sentence. See Docket 13 in Lomeli v. United States, United States District Court for the 14 Southern District of California case number 3:18-cv-228-JAH. This 15 petition contained several confused allegations, including allegations 16 that: (1) the petition was “NOT a 2255” but rather “a Full 17 Satisfaction of Judgment”; (2) the criminal judgment had been 18 “Accepted for Value and Returned for Value, in Exchange for a Complete 19 Setlment [sic] and Closure of ALL Accounts”; (3) the federal 20 government had violated the Constitution by “Replac[ing] The American 21 Monetary System with Worthless Securities”; and (4) legal documents 22 were “Accepted for Value, Claimed and Liened at a Sum Certain of 23 $900,000,000,000.00 USD” in accordance with the California Commercial 24 Code and “PUBLIC POLICY.” The petition contained numerous citations 25 of unclear import, including citations to the California Commercial 26 Code, Internal Revenue Service forms, District of Columbia statutes 27 and the Bible. Petitioner sought, among other things, an order 28 requiring the Federal Bureau of Prisons to “release the Biological 3 Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 4 of 13 Page ID #:47

1 property” (i.e., Petitioner himself) and to expunge “the Entire 2 Record” in Petitioner’s criminal case. The court denied this petition 3 on January 3, 2019. The United States Court of Appeals for the Ninth 4 Circuit dismissed Petitioner’s ensuing appeal for failure to 5 prosecute. 6 7 PETITIONER’S CONTENTIONS 8 9 The present Petition contains four somewhat overlapping grounds 10 for relief: 11 12 Ground One: 13 14 The indictment allegedly violated the Constitution because the 15 Constitution assertedly requires an amendment “to be able to give 16 congress enumerated power to regulate and enforce drugs laws, [and] 17 none exists.” 18 19 Ground Two: 20 21 There is no constitutional amendment imposing a national 22 prohibition against drugs classified as controlled substances. The 23 prosecution failed to produce any constitutional amendment “as 24 mandated by Article V of the Constitution”2 to “enforce any drugs laws 25 specifically for interstate commerce.” The statutes cited in the 26 indictment purportedly are unconstitutional, and the criminal court 27 28 2 Article V of the Constitution concerns procedures for amending the Constitution. 4 Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 5 of 13 Page ID #:48

1 assertedly did not have subject matter jurisdiction. 2 3 Ground Three: 4 5 The government allegedly violated due process by failing to 6 “execute an extradition request from one of the states to the federal 7 venue,” as allegedly required by the Interstate Agreement on Detainers 8 Act. Petitioner supposedly was domiciled in the “California Republic, 9 not in any federal zone or enclave.” 10 11 Ground Four: 12 13 The government allegedly was in contempt of the Constitution for 14 failure to adhere to Article V of the Constitution “and follow its 15 command to amend it to regulate drug laws.” The government’s decision 16 not to proceed by constitutional amendment “is indicative of the 17 government’s contempt for constitutional governance.” 18 19 DISCUSSION 20 21 A federal prisoner who contends that his or her conviction or 22 sentence is subject to collateral attack “may move the court which 23 imposed the sentence to vacate, set aside or correct the sentence.” 24 28 U.S.C. § 2255. A prisoner generally may not substitute a habeas 25 petition under 28 U.S.C. section 2241 for a section 2255 motion. See 26 28 U.S.C. § 2255; see also Stephens v. Herrera, 464 F.3d 895, 897-99 27 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007); Hernandez v. 28 Campbell, 204 F.3d 861, 864 (9th Cir. 2000). 5 Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 6 of 13 Page ID #:49

1 An application for a writ of habeas corpus in behalf of a 2 prisoner who is authorized to apply for relief by motion 3 pursuant to this section, shall not be entertained if it 4 appears that the applicant has failed to apply for relief, 5 by motion, to the court which sentenced him, or that such 6 court has denied him relief, unless it also appears that the 7 remedy by motion is inadequate or ineffective to test the 8 legality of his detention. 9 10 28 U.S.C. § 2255(e); see Stephens v. Herrera, 464 F.3d at 897-99; 11 Hernandez v. Campbell, 204 F.3d at 864. Here, Petitioner has applied 12 for, and has been denied, section 2255 relief in the sentencing court. 13 14 “Under the savings clause of § 2255, however, a federal prisoner 15 may file a habeas corpus petition pursuant to § 2241 to contest the 16 legality of a sentence where his remedy under section 2255 is 17 ‘inadequate or ineffective to test the legality of his detention.’” 18 Hernandez v. Campbell, 204 F.3d at 864-65; see also Stephens v. 19 Herrera, 464 F.3d at 897. This “savings clause” exception to section 20 2255 exclusivity is a “narrow” exception. Ivy v. Pontesso, 328 F.3d 21 1057, 1059-60 (9th Cir.), cert. denied, 540 U.S. 1051 (2003); United 22 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). “The general rule 23 in this circuit is that the ban on unauthorized second or successive 24 petitions does not per se make § 2255 inadequate or ineffective.” 25 Stephens v. Herrera, 464 F.3d at 898 (citations, quotations and 26 brackets omitted). Mere lack of success in the sentencing court does 27 not render the section 2255 remedy “inadequate or ineffective.” 28 Boyden v. United States, 463 F.2d 229, 230 (9th Cir. 1972), cert. 6 Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 7 of 13 Page ID #:50

1 denied, 410 U.S. 912 (1973); see Tripati v. Henman, 843 F.2d 1160, 2 1163 (9th Cir.), cert. denied, 488 U.S. 982 (1988) (“the district 3 court’s previous denial of relief on the merits is not alone 4 sufficient to show that the section 2255 remedy is inadequate”). If 5 the rule were otherwise, every disappointed prisoner/movant 6 incarcerated in a district different from the sentencing district 7 could pursue a repetitive section 2241 petition in the district of 8 incarceration. Petitioner bears the burden of proving the inadequacy 9 or ineffectiveness of the section 2255 remedy. See Redfield v. United 10 States, 315 F.2d 76, 83 (9th Cir. 1963); Gasaway v. Jusino, 2021 WL 11 3042275, at *3 (C.D. Cal. June 1, 2021), adopted, 2021 WL 3037391 12 (C.D. Cal. July 16, 2021). 13 14 A federal prisoner may file a section 2241 petition under the 15 savings clause only if the prisoner “(1) makes a claim of actual 16 innocence, and (2) has not had an unobstructed procedural shot at 17 presenting that claim.” Marrero v. Ives, 682 F.3d 1190, 1192 (9th 18 Cir. 2012), cert. denied, 568 U.S. 1173 (2013) (citation and internal 19 quotations omitted); see also Pavulak v. Blanckensee, 14 F.4th 895, 20 897 (9th Cir. 2021), cert. denied, 142 S. Ct. 1188 (2022). 21 22 In analyzing whether a petitioner had an “unobstructed procedural 23 shot,” the Court considers: “(1) whether the legal basis for 24 petitioner’s claim did not arise until after he had exhausted his 25 direct appeal and first § 2255 motion; and (2) whether the law changed 26 in any way relevant to petitioner’s claim after that first § 2255 27 motion.” Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir.), cert. 28 denied, 555 U.S. 911 (2008) (internal quotations omitted). 7 Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 8 of 13 Page ID #:51

1 In the present case, the “legal basis” for Petitioner’s claims 2 that Congress allegedly lacked the power to enact federal drug laws 3 was available to Petitioner prior to the time of Petitioner’s direct 4 appeal and section 2255 motion. See U.S. Cont., Art. 1, § 8 5 (conferring on Congress the power to regulate interstate commerce and 6 to make all laws “necessary and proper” to its enumerated powers); 7 Gonzales v. Raich, 545 U.S. 1 (2005) (rejecting claim that Congress 8 exceeded its power in enacting the federal Controlled Substances Act); 9 United States v. Tisor, 96 F.3d 370, 375 (9th Cir. 1996), cert. 10 denied, 519 U.S. 1140 (1997) (“the Controlled Substances Act does not 11 exceed Congressional authority under the Commerce Clause”). 12 Petitioner’s apparent claim that Article V of the Constitution 13 required a constitutional amendment to enact the federal drug statutes 14 is manifestly misguided.2 Even so, the “legal basis” for the claim 15 existed at the time of the Petitioner’s direct appeal and section 2255 16 motion. 17 18 The “legal basis” for Petitioner’s claim that the court in his 19 criminal case lacked jurisdiction also existed at the time of 20 Petitioner’s direct appeal and section 2255 motion. See U.S. Const. 21 Art. III (the judicial power extends “to all Cases, in Law and Equity, 22 arising under this Constitution, the Laws of the United States 23 . . .”); 18 U.S.C. § 3231 (“The district courts of the United States 24 shall have original jurisdiction, exclusive of the courts of the 25 26 2 Article V of the Constitution, which concerns 27 procedures for amending the Constitution, has nothing to do with Congress’ power to enact law, including criminal statutes. 28 Article I of the Constitution concerns Congress’ power to enact law. 8 Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 9 of 13 Page ID #:52

1 States, of all offenses against the laws of the United States.”). 2 Petitioner’s allegations resemble the frivolous “sovereign citizen”3 3 type claims which for years have been asserted by individuals 4 attempting to challenge federal courts’ jurisdiction and/or the 5 authority of the government to prosecute violations of federal law. 6 See United States v. Gougher, 835 Fed. App’x 231, 233 (9th Cir. 2020) 7 (“Sovereign citizens share a common belief that the court system is a 8 vast governmental conspiracy controlled by complicated and enigmatic 9 rules . . . . [and] that they are not subject to federal laws and 10 proceedings.”) (citations and quotations omitted); United States v. 11 Taylor, 21 F.4th 94, 102 (3d Cir. 2021) (“sovereign citizens” 12 arguments, including challenges to jurisdiction, deemed frivolous); 13 United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011), cert. 14 denied, 565 U.S. 1132 (2012) (“Regardless of an individual’s claimed 15 status of descent, be it as a ‘sovereign citizen,’ a ‘secured-party 16 creditor,’ or a ‘flesh-and-blood human being,’ that person is not 17 beyond the jurisdiction of the courts.”); United States v. Lorenzo, 18 995 F.2d 1448, 1456 (9th Cir.), cert. denied, 510 U.S. 881 (1993) 19 (deeming without merit defendants’ contention that, as citizens of the 20 “Sovereign Kingdom of Hawaii,” they were not subject to federal 21 court’s jurisdiction); United States v. Schneider, 910 F.2d 1569, 1570 22 (7th Cir. 1990) (argument that defendant is not subject to the 23 jurisdiction of the federal courts “has no conceivable validity in 24 American law”); Rubi v. Wrigley, 2008 WL 191030, at *1 n.1 (E.D. Cal. 25 26 3 “Sovereign citizen claims are claims from individuals who, even though they physically reside in the United States, do 27 not recognize the authority of the federal government and believe that they are not subject to the laws or jurisdiction of 28 governmental entities.” Woodruff v. Mason McDuffie Mortg. Corp., 2020 WL 5210920, at *4 (N. D. Cal. Sept. 1, 2020). 9 Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 10 of 13 Page ID #:53

1 Jan. 22, 2008), adopted, 2008 WL 618950 (E.D. Cal. Mar. 6, 2008) 2 (rejecting section 2241 petitioner’s argument that, as a purported 3 citizen of the “California Republic,” petitioner supposedly was not 4 subject to federal criminal prosecution); Marks v. Wrigley, 2007 WL 5 1463423, at *4 (E.D. Cal. May 18, 2007), adopted, 2007 WL 1660684 6 (E.D. Cal. June 7, 2007) (deeming frivolous section 2241 petitioner’s 7 argument that, as a supposed citizen of the “Sovereign State of 8 California,” petitioner purportedly was not subject to federal 9 criminal prosecution); United States v. Rhoiney, 2002 WL 31987473, at 10 *3 (D. Kan. Dec. 17, 2002) (rejecting as frivolous defendant’s claim 11 that the court lacked jurisdiction to prosecute him for narcotics 12 offenses because he was a resident of the “sovereign” State of 13 Kansas). Thus, the “legal basis” for Petitioner’s “sovereign citizen” 14 style claims arose before Petitioner exhausted his direct appeal and 15 his first section 2255 motion. See id.; see also Skinner v. United 16 States Dep’t of Justice, 2018 WL 7893014, at *8 (C.D. Cal. Dec. 26, 17 2018), adopted, 2019 WL 1437588 (C.D. Cal. Mar. 29, 2019) (where there 18 was “nothing new” about petitioner’s “sovereign citizen” style claims 19 regarding the federal court’s alleged lack of jurisdiction, petitioner 20 failed to show he lacked an “unobstructed procedural shot” at 21 presenting his claims). 22 23 Furthermore, as the authorities cited above demonstrate, there 24 has been no material change in the law following the sentencing 25 court’s denial of Petitioner’s first section 2255 motion. 26 /// 27 /// 28 Nor has Petitioner shown the requisite “actual innocence” within 10 Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 11 of 13 Page ID #:54

1 the meaning of the savings clause. “[T]o establish actual innocence, 2 petitioner must demonstrate that, in light of all the evidence, it is 3 more likely than not that no reasonable juror would have convicted 4 him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citation 5 and quotations omitted). “‘Actual innocence’ means factual innocence, 6 not mere legal insufficiency.” Marrero v. Ives, 682 F.3d at 1193 7 (quoting Bousley v. United States, 523 U.S. at 623) (internal brackets 8 omitted). “Petitioner bears the burden of proof on this issue by a 9 preponderance of the evidence, and he must show not just that the 10 evidence against him was weak, but that it was so weak that ‘no 11 reasonable juror’ would have convicted him.” Lorentsen v. Hood, 223 12 F.3d 950, 954 (9th Cir. 2000). Here, although Petitioner alleges in a 13 conclusory fashion that he is “an actually and factually innocent 14 man,” Petitioner makes no effort to show that “in light of all the 15 evidence, it is more likely than not that no reasonable juror would 16 have convicted him.” See Bousley v. United States, 523 U.S. at 623. 17 An individual’s mere assertion of “actual innocence,” without the 18 introduction of “evidence tending to show that he did not commit the 19 [acts] underlying his convictions,” is insufficient to show “actual 20 innocence.” See Marrero v. Ives, 682 F.3d at 1192; see also Schlup v. 21 Delo, 513 U.S. 298, 324 (1995) (“To be credible, [an actual innocence] 22 claim requires petitioner to support his allegations of constitutional 23 error with new reliable evidence -- whether it be exculpatory 24 scientific evidence, trustworthy eyewitness accounts, or critical 25 physical evidence -- that was not presented at trial. Because such 26 evidence is obviously unavailable in the vast majority of cases, 27 claims of actual innocence are rarely successful.”) (emphasis added). 28 11 Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 12 of 13 Page ID #:55

1 Accordingly, the savings clause does not apply, and the present 2 Petition is actually a disguised section 2255 motion over which this 3 Court lacks jurisdiction. 4 5 A court lacking jurisdiction of a civil action may transfer the 6 action to a court in which the action could have been brought, 7 provided the transfer is “in the interest of justice.” 28 U.S.C. § 8 1631; see Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 9 2001). “Normally transfer will be in the interest of justice because 10 normally dismissal of an action that could be brought elsewhere is 11 time consuming and justice-defeating.” Id. at 1074 (citations and 12 quotations omitted). In the present case, however, a transfer to the 13 sentencing court would be an idle act. Transfer to the sentencing 14 court would not benefit Petitioner because the sentencing court would 15 be unable to entertain the matter absent Ninth Circuit authorization. 16 See 28 U.S.C. §§ 2244, 2255(h); Copeland v. Martinez, 2020 WL 2097745, 17 at *3 (C.D. Cal. Apr. 30, 2020) (transfer of successive section 2255 18 motion to sentencing court would be futile where petitioner had not 19 obtained authorization to file motion from the court of appeals); 20 Crosby v. Ives, 2014 WL 6884017 (C.D. Cal. Dec. 3, 2014) (same); Scott 21 v. Ives, 2009 WL 2051432 (E.D. Cal. July 10, 2009) (same). Petitioner 22 evidently has not obtained such authorization. The Ninth Circuit’s 23 docket, of which the Court takes judicial notice,4 does not reflect 24 that any person named Tony Lomeli or Tony Lomeli Ceja ever has 25 obtained authorization to file a second or successive section 2255 26 27 4 See Porter v. Ollison, 620 F.3d 952, 954-55 n.1 (9th 28 Cir. 2010). The Ninth Circuit’s docket is available on the PACER website at https://pacer.uscourts.gov. 12 Case 2:22-cv-01636-FWS-E Document 10 Filed 05/03/22 Page 13 0f13 Page ID #:56

motion. See 28 U.S.C. §§ 2244, 2255(h). Therefore, transfer is 2| inappropriate. 4 ORDER 6 For the foregoing reasons, the Petition is denied and dismissed 7| without prejudice. 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 11 DATED: May 3, 2022. Ly L//—— 13 FRED W. SLAUGHTER 14 UNITED STATES DISTRICT JUDGE 15 16] Presented this 2nd day of 17] May, 2022, by: 18 19 CHARLES F. EICK 20] UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28