The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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10 ROBERT STEVEN BROWN, Case No. 1:18-cv-01570-SAB-HC
11 Petitioner, ORDER LIFTING STAY, GRANTING
RESPONDENT’S MOTION TO DISMISS,
12 v. DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS, DIRECTING CLERK
13 BRUCE PLUMLEY, OF COURT TO CLOSE CASE, AND
DECLINING TO ISSUE A CERTIFICATE
14 Respondent. OF APPEALABILITY
15 (ECF No. 19)
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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2241. The parties have consented to the jurisdiction of a United States
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Magistrate Judge. (ECF Nos. 4, 8).
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I.
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BACKGROUND
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Petitioner is currently incarcerated at the Federal Correctional Institution in Mendota,
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California. (ECF No. 1 at 1).1 According to the petition and the docket for the United States
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District Court for the Northern District of Texas, on June 12, 1992, Petitioner pleaded guilty to
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possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).2 (ECF No. 1
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at 4; ECF No. 19 at 2). On August 13, 1992, Petitioner was sentenced to an imprisonment term
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1 Page numbers refer to the ECF page numbers stamped at the top of the page.
27 2 The Court “may take notice of proceedings in other courts, both within and without the federal judicial system, if
those proceedings have a direct relation to matters at issue.” U.S. ex rel. Robinson Rancheria Citizens Council v.
1 of 200 months. (ECF No. 1 at 4; ECF No. 19 at 2). On March 19, 1993, the judgment was
2 affirmed. United States v. Brown, 988 F.2d 1213 (5th Cir. 1993) (unpublished table decision).
3 On August 18, 2015, Petitioner filed a motion to vacate, set aside, or correct the sentence
4 pursuant to 28 U.S.C. § 2255, which the district court denied as untimely. Brown v. United
5 States, No. 4:15-CV-646-A, 2015 WL 6125721 (N.D. Tex. Oct. 15, 2015). The Fifth Circuit
6 denied a certificate of appealability. United States v. Brown, No. 15-11105 (5th Cir. Sept. 26,
7 2016). Thereafter, on or around February 7, 2017, Petitioner filed an application for
8 authorization to file a second or successive § 2255 motion, which the Fifth Circuit denied on
9 March 29, 2017. (ECF No. 1 at 5, 34–35).
10 On November 15, 2018, Petitioner filed the instant petition for writ of habeas corpus,
11 challenging the sentence imposed by the United States District Court for the Northern District of
12 Texas. (ECF No. 1). Petitioner asserts that he “should be resentenced minus the Armed Career
13 Criminal Act (ACCA) enhancement,” arguing that his prior burglary convictions could not serve
14 as predicates for an enhanced sentence under the ACCA. (ECF No. 1 at 5, 6–7).
15 On May 31, 2019, the Court granted Respondent’s motion to stay the instant proceeding
16 pending the Supreme Court’s resolution of United States v. Herrold, No. 17-1445, and Quarles v.
17 United States, No. 17-778. (ECF No. 18). On June 28, 2019, Respondent filed a motion to
18 dismiss in light of the Supreme Court’s recent decision in Quarles. (ECF No. 19). To date,
19 Petitioner has not filed any opposition, and the time for doing so has passed.
20 II.
21 DISCUSSION
22 A. Jurisdiction Under 28 U.S.C. § 2241
23 A federal court may not entertain an action over which it has no jurisdiction. Hernandez
24 v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam). A federal prisoner who wishes to
25 challenge the validity or constitutionality of his federal conviction or sentence must do so by
26 moving the court that imposed the sentence to vacate, set aside, or correct the sentence under 28
27 U.S.C. § 2255. Alaimalo v. United States, 645 F.3d 1042, 1046 (9th Cir. 2011). “The general
1 may test the legality of his detention, and that restrictions on the availability of a § 2255 motion
2 cannot be avoided through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464 F.3d
3 895, 897 (9th Cir. 2006) (citations omitted).
4 Nevertheless, a “savings clause” or “escape hatch” exists in § 2255(e) by which a federal
5 prisoner may seek relief under § 2241 if he can demonstrate the remedy available under § 2255
6 to be “inadequate or ineffective to test the validity of his detention.” Alaimalo, 645 F.3d at 1047
7 (internal quotation marks omitted) (quoting 28 U.S.C. § 2255); Harrison v. Ollison, 519 F.3d
8 952, 956 (9th Cir. 2008); Hernandez, 204 F.3d at 864–65. The Ninth Circuit has recognized that
9 it is a very narrow exception. See Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). The
10 remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a
11 prior § 2255 motion was denied, or because a remedy under § 2255 is procedurally barred. Id.
12 The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v.
13 United States, 315 F.2d 76, 83 (9th Cir. 1963).
14 “An inquiry into whether a § 2241 petition is proper under these circumstances is critical
15 to the determination of district court jurisdiction” because § 2241 petitions must be heard in the
16 custodial court while § 2255 motions must be heard in the sentencing court. Hernandez, 204 F.3d
17 at 865. If the instant petition is properly brought under 28 U.S.C. § 2241, this Court, as the
18 custodial court, has jurisdiction. Conversely, if the instant petition is in fact a disguised § 2255
19 motion, it must be heard in the United States District Court for the Northern District of Texas,
20 which imposed Petitioner’s sentence.
21 A petitioner may proceed under § 2241 pursuant to the savings clause when the petitioner
22 “(1) makes a claim of actual innocence, and (2) has not had an ‘unobstructed procedural shot’ at
23 presenting that claim.” Stephens, 464 F.3d at 898 (citing Ivy, 328 F.3d at 1060).
24 B. Actual Innocence
25 In the Ninth Circuit, a claim of actual innocence for purposes of the § 2255 savings
26 clause is tested by the standard articulated by the Supreme Court in Bousley v. United States,
27 523 U.S. 614 (1998). Stephens, 464 F.3d at 898. In Bousley, the Supreme Court explained that
1 more likely than not that no reasonable juror would have convicted him.” 523 U.S. at 623
2 (internal quotation marks and citation omitted). Furthermore, “actual innocence means factual
3 innocence, not mere legal insufficiency.” Id.
4 The Ninth Circuit has “not yet resolved the question whether a petitioner may ever be
5 actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch.”
6 Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012). In Marrero, the Ninth Circuit held that “the
7 purely legal argument that a petitioner was wrongly classified as a career offender under the
8 Sentencing Guidelines is not cognizable as a claim of actual innocence under the escape hatch.”
9 Id. at 1195. The Marrero court also discussed, but did not endorse, the following exceptions
10 recognized in other circuits to the general rule that a petitioner cannot assert a cognizable claim
11 of actual innocence of a noncapital sentencing enhancement:
12 First, some courts have held that a petitioner may be actually innocent of a
sentencing enhancement if he was factually innocent of the crime that served as
13 the predicate conviction for the enhancement. Second, some courts have
suggested that a petitioner may qualify for the escape hatch if he received a
14 sentence for which he was statutorily ineligible. And third, some courts have left
open the possibility that a petitioner might be actually innocent of a sentencing
15 enhancement if the sentence resulted from a constitutional violation.
16 Marrero, 682 F.3d at 1194–95 (citations omitted).
17 Regardless, even if a petitioner may assert a cognizable claim of actual innocence of a
18 noncapital sentencing enhancement, Petitioner has failed to do so here.
19 1. The ACCA’s Residual Clause
20 Petitioner argues that his prior burglary convictions could not serve as predicates for an
21 enhanced sentence under the ACCA. (ECF No. 1 at 6–7). “The Armed Career Criminal Act
22 requires a federal sentencing judge to impose upon certain persons convicted of unlawfully
23 possessing a firearm a 15-year minimum prison term. The judge is to impose that special
24 sentence if the offender also has three prior convictions for certain violent or drug-related”
25 felonies. United States v. Stitt, 139 S. Ct. 399, 403 (2018) (citing 18 U.S.C. § 924(e)).
26 The ACCA’s definition of “violent felony” includes “any crime punishable by
27 imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves
1 injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The “otherwise involves conduct that presents a
2 serious potential risk of physical injury to another” language of the definition is known as the
3 Act’s residual clause, which the Supreme Court has struck down as “unconstitutionally vague.”
4 Johnson v. United States, 135 S. Ct. 2551, 2556, 2557 (2015). Although “imposing an increased
5 sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s
6 guarantee of due process,” Johnson “does not call into question application of the Act to the four
7 enumerated offenses, or the remainder of the Act’s definition of a violent felony.” Id. at 2563.
8 As noted by the district court in denying Petitioner’s § 2255 motion, Petitioner “was
9 sentenced using ACCA’s enumerated violent felony of burglary, not the residual clause.” Brown,
10 2015 WL 6125721, at *2 (citing Presentence Report of Robert Steven Brown at 4–5). As
11 Johnson held only the residual clause to be unconstitutionally vague, the Court finds that
12 Johnson is inapplicable.
13 Petitioner’s reliance on Sessions v. Dimaya, 138 S. Ct. 1204 (2018), is similarly
14 inapposite. In Dimaya, the Supreme Court applied the reasoning of Johnson and held that 18
15 U.S.C. § 16(b), the residual clause of the federal criminal code’s definition of “crime of
16 violence,” was unconstitutionally vague. Dimaya, 138 S. Ct. at 1211, 1223. However, as
17 Petitioner was sentenced using ACCA’s enumerated violent felony of burglary and not the
18 residual clause, the Court finds that Dimaya also is inapplicable.
19 2. Enumerated Offense of Burglary
20 With respect to use of prior burglary convictions to enhance a sentence pursuant to the
21 ACCA, the Supreme Court has held that courts are required “to evaluate a prior state conviction
22 ‘in terms of how the law defines the offense and not in terms of how an individual offender
23 might have committed it on a particular occasion.’” Stitt, 139 S. Ct. at 405 (quoting Begay v.
24 United States, 553 U.S. 137, 141 (2008)). This is “known as the categorical approach,” which
25 “focus[es] solely on whether the elements of the crime of conviction sufficiently match the
26 elements of generic burglary, while ignoring the particular facts of the case.” Mathis v. United
27 States, 136 S. Ct. 2243, 2248 (2016). “The comparison of elements that the categorical approach
1 define a single crime. The court then lines up that crime’s elements alongside those of the
2 generic offense and sees if they match.” Mathis, 136 S. Ct. at 2248.
3 “Some statutes, however, have a more complicated (sometimes called ‘divisible’)
4 structure, making the comparison of elements harder. A single statute may list elements in the
5 alternative, and thereby define multiple crimes.” Mathis, 136 S. Ct. at 2249 (citation omitted). In
6 order to assist a sentencing court in “figuring out which of the alternative elements listed . . . was
7 integral to the defendant’s conviction (that is, which was necessarily found or admitted),” the
8 Supreme Court “approved the ‘modified categorical approach’ for use with statutes having
9 multiple alternative elements.” Id. (citing Shepard v. United States, 544 U.S. 13, 26 (2005)).
10 Under the modified categorical approach, “a sentencing court looks to a limited class of
11 documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to
12 determine what crime, with what elements, a defendant was convicted of. The court can then
13 compare that crime, as the categorical approach commands, with the relevant generic offense.”
14 Mathis, 136 S. Ct. at 2249 (citation omitted).
15 Additionally, there is “a different kind of alternatively phrased law. . . that enumerates
16 various factual means of committing a single element.” Mathis, 136 S. Ct. at 2249 (citation
17 omitted). For example, a burglary “statute might . . . itemize the various places that crime could
18 occur as disjunctive factual scenarios rather than separate elements, so that a jury need not make
19 any specific findings (or a defendant admissions) on that score.” Id. In Mathis, the Supreme
20 Court addressed
21 whether ACCA treats this kind of statute as it does all others, imposing a sentence
enhancement only if the state crime’s elements correspond to those of a generic
22 offense—or instead whether the Act makes an exception for such a law, so that a
sentence can be enhanced when one of the statute’s specified means creates a
23 match with the generic offense, even though the broader element would not.
24 136 S. Ct. at 2250. Mathis declined to find such an exception. Id. at 2248.
25 The Supreme Court has “defined the elements of generic ‘burglary’ as ‘an unlawful or
26 unprivileged entry into, or remaining in, a building or other structure, with intent to commit a
27 crime.’” Stitt, 139 S. Ct. at 405–06 (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)).
1 elements of [the relevant state statute] are broader than those of generic burglary.’” Stitt, 139 S.
2 Ct. at 405 (alteration in original) (quoting Mathis, 136 S. Ct. at 2257).
3 Here, Petitioner’s sentence was enhanced based on three convictions for burglary of a
4 habitation and one conviction for burglary of a building under Texas law. (ECF No. 1 at 18, 19).
5 Texas’s burglary statute provides:
6 A person commits an offense if, without the effective consent of the owner, the
person:
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(1) enters a habitation, or a building (or any portion of a building) not then
8 open to the public, with intent to commit a felony, theft, or an assault; or
9 (2) remains concealed, with intent to commit a felony, theft, or an assault,
in a building or habitation; or
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(3) enters a building or habitation and commits or attempts to commit a
11 felony, theft, or an assault.
12 Texas Penal Code § 30.02(a).
13 In United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), the Fifth Circuit held
14 that burglary convictions under the Texas Penal Code cannot serve as predicate offenses under
15 the ACCA. In so holding, Herrold concluded that: Texas Penal Code sections 30.02(a)(1) and
16 (a)(3) are indivisible, id. at 523, 529; and subsection 30.02(a)(3) is broader than generic burglary
17 because “[s]ubsection 30.02(a)(3) contains no textual requirement that a defendant’s intent to
18 commit a crime contemporaneously accompany a defendant’s unauthorized entry,” id. at 531.
19 The Supreme Court subsequently vacated Herrold and remanded the matter in light of
20 Quarles v. United States, 139 S. Ct. 1872 (2019). United States v. Herrold, 139 S. Ct. 2712
21 (2019). In Quarles, the Supreme Court addressed the “exceedingly narrow question” of
22 whether remaining-in burglary (i) occurs only if a person has the intent to commit
a crime at the exact moment when he or she first unlawfully remains in a building
23 or structure, or (ii) more broadly, occurs when a person forms the intent to
commit a crime at any time while unlawfully remaining in a building or structure.
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25 139 S. Ct. at 1875. The Supreme Court held that “[f]or purposes of § 924(e), we conclude that
26 remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time
27 while unlawfully remaining in a building or structure.” Quarles, 139 S. Ct. at 1875.
1 On remand, the Fifth Circuit reinstated its en banc determination that the Texas burglary
2 statute is indivisible, found that subsection 30.02(a)(3) is generic, and held that Herrold’s prior
3 burglary convictions under Texas Penal Code subsection 30.02(a)(1) qualified as predicates for a
4 sentence enhancement under the ACCA. United States v. Herrold, --- F.3d ----, 2019 WL
5 5288154, at *3, 7 (5th Cir. Oct. 18, 2019). Based on the foregoing, Quarles and the Fifth
6 Circuit’s Herrold decision on remand foreclose Petitioner’s argument that his Texas burglary
7 convictions cannot be used as predicate offenses under the ACCA.
8 Accordingly, the Court finds that Petitioner has failed to establish a cognizable claim of
9 actual innocence for purposes of qualifying to bring a § 2241 habeas petition under the escape
10 hatch or savings clause of 28 U.S.C. § 2255(e). Therefore, this Court lacks jurisdiction over the
11 petition and it should be dismissed.
12 C. Certificate of Appealability
13 “Where a petition purportedly brought under § 2241 is merely a ‘disguised’ § 2255
14 motion, the petitioner cannot appeal from the denial of that petition without a [certificate of
15 appealability].” Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008). The controlling statute in
16 determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as
17 follows:
18 (a) In a habeas corpus proceeding or a proceeding under section
2255 before a district judge, the final order shall be subject to
19 review, on appeal, by the court of appeals for the circuit in which
the proceeding is held.
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(b) There shall be no right of appeal from a final order in a
21 proceeding to test the validity of a warrant to remove to another
district or place for commitment or trial a person charged with a
22 criminal offense against the United States, or to test the validity of
such person’s detention pending removal proceedings.
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(c) (1) Unless a circuit justice or judge issues a certificate of
24 appealability, an appeal may not be taken to the court of
appeals from–
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(A) the final order in a habeas corpus proceeding in which
26 the detention complained of arises out of process issued by
a State court; or
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(B) the final order in a proceeding under section 2255.
1 (2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the
2 denial of a constitutional right.
3 (3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
4 required by paragraph (2).
5 A court should issue a certificate of appealability if “reasonable jurists could debate
6 | whether (or, for that matter, agree that) the petition should have been resolved in a different
7 |manner or that the issues presented were ‘adequate to deserve encouragement to proceed
g | further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.
g | 880, 893 & n.4 (1983)). In the present case, the Court finds that reasonable jurists would not find
19 | the Court’s determination that Petitioner’s federal habeas corpus petition should be dismissed
11 | debatable or wrong, or that Petitioner should be allowed to proceed further. Therefore, the Court
12 | declines to issue a certificate of appealability.
13 III.
14 ORDER
15 Accordingly, the Court HEREBY ORDERS that:
16 1. The stay in this matter is LIFTED;
17 2. Respondent’s motion to dismiss (ECF No. 19) is GRANTED;
18 3. The petition for writ of habeas corpus is DISMISSED;
19 4. The Clerk of Court is directed to CLOSE the case; and
20 5. The Court DECLINES to issue a certificate of appealability.
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IT IS SO ORDERED.
22 Af
23 | Dated: _October 29, 2019 _ ef
UNITED STATES MAGISTRATE JUDGE
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