“Habeas Corpus Rule 2(c) is more demanding”
How later courts described this case
- “Habeas Corpus Rule 2(c) is more demanding”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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11 ALFONSO THOMPSON, Case No. 1:23-cv-00504-CDB (HC)
12 Petitioner, FINDINGS AND RECOMMENDATIONS
THAT THE PETITION FOR WRIT OF
13 v. HABEAS CORPUS BE DISMISSED WITH
PREJUDICE AND WITHOUT LEAVE TO
14 UNITED STATES OF AMERICA,1 AMEND
15 Respondent. (Doc. 1)
16 TWENTY-ONE DAY DEADLINE
17 Clerk of Court to assign District Judge
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19 Petitioner Alfonso Thompson (“Petitioner”) is a federal prisoner proceeding pro se with a
20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1).2 Petitioner is currently in
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22 1 Petitioner filed this petition against Respondent “the United States of America” which is not
the appropriate respondent. (Doc. 1). See Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.
23 1992) (per curiam) (“The proper respondent in a federal habeas corpus petition is the petitioner’s
‘immediate custodian,’” or “the person having a day-to-day control over the prisoner,” typically, the
24 custodial facility’s warden).
25 2 Petitioner has failed to sign his petition. (Doc. 1 at 7). An application for a writ of habeas
corpus: “shall be in writing signed and verified by the person for whose relief it is intended or by
26 someone acting [on] his behalf.” 28 U.S.C. § 2242. In addition, Rule 2(c)(5) of the Rules Governing
Section 2254 Cases requires that the petition be signed under penalty of perjury by the petitioner or
27 someone acting on his behalf. See Local Rule 190(b) (“The petition or motion shall be signed under
penalty of perjury, and if presented in propria persona, upon the form and in accordance with the
28 instructions approved by the Court.”). However, the Ninth Circuit Court of Appeals has held that an
unsigned and unverified petition is a defect “that the district court may, if it sees fit, disregard.”
1 the custody of the Bureau of Prisons (“BOP”) at the United States Penitentiary located in Atwater,
2 California, and filed the instant petition on April 4, 2023. Id. Petitioner seeks review of the sentence
3 imposed on him by the United States District Court for the District of New Mexico. For the reasons
4 that follow, the Court will recommend that the petition be dismissed with prejudice.
5 Background
6 On November 27, 2012, Petitioner was charged by indictment in the District of New Mexico
7 with being a felon in possession of a firearm. (Doc. 1 at 11); see United States v. Thompson, No. 1:12-
8 cr-03013-JB-CG-1 (D.N.M.) (Doc. 2). On January 14, 2014, Petitioner entered a guilty plea pursuant
9 to a plea agreement with the United States. (Doc. 1 at 15-23); Thompson, No. 1:12-cr-03013-JB-CG-1
10 (Docs. 60-61). Petitioner alleges he was “promised 8 years in exchange for [pleading guilty],” and in
11 its sentencing memorandum, the United States concurred that the parties’ agreement was for a
12 sentence of eight years of imprisonment. (Doc. 1 at 3, 11).3 However, the plea agreement also states,
13 “[t]he parties acknowledge that if the Court determines that Defendant’s criminal history establishes
14 him as an armed career criminal under 18 U.S.C. § 924(e) (“Armed Career Criminal Act hereinafter
15 ACCA”), then the Court must reject this plea agreement.” Id. at 19, ¶ 10(c).
16 On April 3, 2014, Petitioner’s presentencing report (“PSR”) was disclosed. Id. at 12. The PSR
17 concluded that Petitioner qualified as an “armed career criminal under [the ACCA] and is therefore
18 subject to a mandatory minimum penalty of 15 years imprisonment.” Id. at 11. Specifically, the PSR
19 stated Petitioner had been convicted of battery against a house member with a deadly weapon and two
20 attempted murder convictions. Id. at 11-12.
21 On May 12, 2014, the United States filed a sentencing memorandum advising the sentencing
22 court that if Petitioner is deemed an armed career criminal, then the agreed upon disposition under the
23 plea agreement would constitute an illegal sentence. (Doc. 1 at 11); Thompson, No. 1:12-cr-03013-
24 JB-CG-1 (Doc. 64). On June 24, 2014, at a status conference, Petitioner made an oral motion to
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26 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Because the petition is deficient on
jurisdictional grounds the Court shall disregard Petitioner’s failure to sign the petition.
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3 The court notes that pursuant to Rule 11(c)(1)(C), the plea agreement expressly provides that
28 the parties agreed “[t]he length of the sentence of imprisonment imposed in this case shall be ten
years.” Id. at 19, ¶ 10(a).
1 withdraw his plea of guilty. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 77). The District Court
2 granted a withdrawal of Petitioner’s plea of guilty. Id.
3 On July 2, 2014, Petitioner entered a guilty plea pursuant to a second plea agreement with the
4 United States in which the parties agreed the Petitioner would be sentenced to 15 years of
5 imprisonment. See Thompson, No. 1:12-cr-03013-JB-CG-1 (Docs. 75 at ¶ 10, 76). On October 14,
6 2014, the District Court of New Mexico found Petitioner qualified as an armed career criminal and
7 sentenced Petitioner to 180 months, to be served consecutively to any sentence imposed in D-202-CR-
8 2012-3537. Thompson, No. 1:12-cr-03013-JB-CG-1 (Docs. 91, 92).
9 On June 6, 2016, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §
10 2255, to the District Court of New Mexico. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 97).
11 Petitioner argued his sentence was unconstitutional pursuant to the Supreme Court’s decision in
12 Johnson v. United States, 135 S. Ct. 2551 (2015). Id. The United States filed an opposition to the
13 petition on August 4, 2016. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 100).
14 On November 8, 2016, the Honorable Magistrate Judge Carmen E. Garza of the District Court
15 of New Mexico issued findings and recommendations recommending the petition be dismissed with
16 prejudice. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 103). The magistrate found Petitioner’s
17 sentence was properly enhanced under the ACCA because his attempted first-degree murder qualified
18 as a violent felony. Id. Petitioner filed objections to the findings and recommendations on December
19 7, 2016. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 106).
20 The Honorable District Judge C. LeRoy Hansen of the District Court of New Mexico issued an
21 order adopting the magistrate judge’s findings and recommendation on January 19, 2017. Thompson,
22 No. 1:12-cr-03013-JB-CG-1 (Docs. 107-08). That same day, Petitioner sought a certificate of
23 appealability to the Tenth Circuit Court of Appeals. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc.
24 109). On January 9, 2018, the Tenth Circuit denied Petitioner’s request for a certificate of
25 appealability and dismissed his appeal. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 122). On June
26 25, 2018, Petitioner filed a petition for writ of certiorari to the Supreme Court of the United States.
27 Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 123). The Supreme Court denied the petition on
28 October 1, 2018. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 124).
1 On December 3, 2018, Petitioner filed a second petition for writ of habeas corpus pursuant to
2 28 U.S.C. § 2255, to the District Court of New Mexico. Thompson, No. 1:12-cr-03013-JB-CG-1
3 (Doc. 125). On June 28, 2019, the Honorable District Judge James O. Browning of the District of
4 New Mexico issued an order dismissing the second petition. Thompson, No. 1:12-cr-03013-JB-CG-1
5 (Doc. 128). The District Court found Petitioner sought to relitigate the same issue that his first
6 petition presented and did not present “any newly discovered evidence undermining his conviction or
7 raise a new rule of constitutional law.” Id. at 5. The District Court held Petitioner’s petition was a
8 second or successive § 2255 petition filed without the requisite authorization and dismissed the
9 petition for lack of jurisdiction. Id. at 5-7.
10 On April 4, 2023, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §
11 2241 to this Court. (Doc. 1).
12 Petitioner’s Claims
13 Petitioner claims the District Court of New Mexico improperly sentenced him under the
14 ACCA. Id. at 1-2. Petitioner argues his two attempted murder convictions do not qualify as violent
15 predicate crimes under the ACCA. Id. at 2 (citing State v. Price, 104 N.M. 703 (N.M. Ct. App. 1986);
16 Borden v. United States, 141 S. Ct. 1817 (2021)). Next, Petitioner asserts a claim of ineffective
17 assistance of counsel as his attorney failed to challenge his armed career criminal designation. Id. at
18 3-4. Petitioner contends his sentence is improper as the district court disregarded his “plea agreement
19 for 8 years.” Id. at 2. Petitioner also asserts he was coerced into agreeing to a plea agreement. Id. at
20 3.
21 Petitioner claims his habeas case needs to be “reopened” in light of the Supreme Court’s
22 decision in Concepcion v. United States, 142 S. Ct. 2389 (2022). Id. at 4. Petitioner contends he is
23 actually innocent of his sentence as “the court abused its discretion by applying this enhancement
24 allowing the prosecution to punish for what was not written in the indictment.” Id. at 4-5 (citing
25 United States v. Wharton, No. ELH-13-0043, 2014 WL 1430387 (D. Md. April 10, 2014)). Petitioner
26 request this Court reverse his sentence to the original sentence of eight years. Id. at 5.
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1 Preliminary Screening Requirement
2 Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary
3 review of each petition for writ of habeas corpus.4 Pro se habeas corpus petitions are to be liberally
4 construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court must dismiss a
5 petition “[i]f it plainly appears from the petition…that the petitioner is not entitled to relief.” Habeas
6 Rule 4; Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Habeas Rule 2(c) requires that a
7 petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each
8 ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must
9 state facts that point to a real possibility of a constitutional error. Mayle v. Felix, 545 U.S. 644, 655
10 (2005) (“Habeas Corpus Rule 2(c) is more demanding”). Allegations in a petition that are vague,
11 conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 908 F.2d at 491. A
12 petition for habeas corpus should not be dismissed without leave to amend “unless it appears that no
13 tenable claim for relief can be pleaded were such leave to be granted.” Jarvis v. Nelson, 440 F.2d 13,
14 14 (9th Cir. 1971) (per curiam).
15 Jurisdiction
16 In general, a federal prisoner who wishes to challenge the validity or constitutionality of his
17 federal conviction or sentence must do so by way of a motion to vacate, set aside, or correct the
18 sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988); Stephens
19 v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007). In such cases, only
20 the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163; Hernandez v. Campbell, 204 F.3d
21 861, 864 (9th Cir. 2000).
22 In contrast, a prisoner challenging the manner, location, or conditions of that sentence’s
23 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district where
24 the petitioner is in custody. Hernandez, 204 F.3d at 865. Section 2241(a) provides that writs of
25 habeas corpus may be granted by the district courts “within their respective jurisdictions.” A writ of
26 habeas corpus operates not upon the prisoner, but upon the prisoner’s custodian. Braden v. 30th
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28 4 The Rules Governing § 2254 cases in the United States Courts (Habeas Rules) are
appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b).
1 Judicial Circuit Court, 410 U.S. 484, 494-495 (1973). A petitioner filing a petition for writ of habeas
2 corpus under § 2241 generally must file the petition in the judicial district of the petitioner’s custodian.
3 Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). Jurisdiction by the custodial district “is not
4 destroyed by a transfer of the petitioner and the accompanying custodial change.” Francis v. Rison,
5 894 F.2d 353, 354 (9th Cir. 1990) (quoting Santillanes v. United States Parole Comm’n, 754 F.2d 889,
6 888 (10th Cir. 1985)).
7 “The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a
8 federal prisoner may test the legality of his detention, and that restrictions on the availability of a §
9 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” Stephens, 464 F.3d at
10 897. An exception exists by which a federal prisoner may challenge the validity or constitutionality of
11 his federal conviction or sentence under § 2241, referred to as the “savings clause” or “escape hatch”
12 of § 2255. Id.; Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). Under the § 2255 escape
13 hatch, “a federal prisoner may file a § 2241 petition if, and only if, the remedy under § 2255 is
14 ‘inadequate or ineffective to test the legality of his detention.’” Marrero v. Ives, 682 F.3d 1190, 1192
15 (9th Cir. 2012) (quoting Stephens, 464 F.3d at 897).
16 A remedy is not deemed “inadequate or ineffective” merely because § 2255’s gatekeeping
17 provisions prevent the petitioner from filing a second or successive petition. Ivy v. Pontesso, 328 F.3d
18 1057, 1059 (9th Cir. 2003); accord Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curiam)
19 (§ 2255 not inadequate or ineffective simply because the district court dismissed the § 2255 motion as
20 successive and court of appeals did not authorize a successive motion). Instead, the Ninth Circuit has
21 held that § 2255 provides an “inadequate and ineffective” remedy (and thus that the petitioner may
22 proceed under Section 2241) when the petitioner: (1) makes a claim of actual innocence, and (2) has
23 never had an “unobstructed procedural shot” at presenting the claim. Harrison, 519 F.3d at 959;
24 Stephens, 464 F.3d at 898; accord Marrero, 682 F.3d at 1192. The petitioner bears the burden to
25 show that remedy under § 2255 is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83
26 (9th Cir. 1963). If a petitioner fails to meet this burden, then his § 2241 petition must be dismissed for
27 lack of jurisdiction. Ivy, 328 F.3d at 1060.
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1 Applicable Law and Analysis
2 A. Actual Innocence
3 To establish actual innocence for purposes of habeas relief, a petitioner “must demonstrate
4 that, in light of all the evidence, it is more likely than not that no reasonable juror would have
5 convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotations and citations
6 omitted). “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Id. In Allen v.
7 Ives, the Ninth Circuit held that a habeas petitioner could challenge a sentencing enhancement under
8 the escape hatch because changes in the law “transformed his [prior state court conviction] from a
9 predicate crime into a non-predicate crime.” 950 F.3d 1184, 1190 (9th Cir. 2020). Subsequently, the
10 Ninth Circuit clarified that Allen is limited to petitioners who received a mandatory sentence under a
11 mandatory sentencing scheme. Shepherd v. Unknown Party, 5 F.4th 1075, 1078 (9th Cir. 2021)
12 (citing Allen v. Ives, 976 F.3d 863, 869 (9th Cir. 2020) (W. Fletcher, J, concurring in the denial of the
13 petition for rehearing en banc)).
14 Petitioner has not shown he received a mandatory sentence under a mandatory sentencing
15 scheme. To the extent Petitioner claims that he is “actually innocent” of his armed career criminal
16 offender enhancement, Petitioner was sentenced after United States v. Booker, 543 U.S. 220 (2005)
17 under advisory, not mandatory, career offender guidelines. See Beckles v. United States, 580 U.S.
18 256, 266 (2017) (district courts have discretion to apply or not apply advisory career offender
19 guidelines enhancements). In this case, the trial court calculated an advisory guideline imprisonment
20 range of 188 to 235 months. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 120 at 7-8). The trial
21 court exercised its discretion and imposed a sentence below the applicable guideline range (180
22 monts). Id. at 8. The limited holding of Allen is insufficient to raise a claim of actual innocence. See
23 Shepherd, 5 F.4th at 1078 (“The district court imposed a below-the-(either)-guidelines-range sentence
24 of 190 months, belying Shepherd’s claim of actual innocence”). See also Wilson v. Thompson, No.
25 2:21-cv-0793 KJN P, 2022 WL 815334, *4 (E.D. Cal. Mar. 17, 2022) (finding escape hatch
26 unavailable to petitioner because his “predicate state court convictions which triggered his career
27 offender status did not require the court to impose a sentence mandated by statute. Rather, petitioner
28 was sentenced within a sentencing range, not pursuant to a mandatory sentencing statute.”) (citing
1 Shepherd). Therefore, Petitioner fails to make a claim of actual innocence as required by the escape
2 hatch provision of § 2255(e).
3 B. Unobstructed Procedural Shot
4 In determining whether a petitioner has not had an “unobstructed procedural shot” at raising
5 his habeas claims, the court considers “(1) whether the legal basis for petitioner’s claim ‘did not arise
6 until after he had exhausted his direct appeal and first § 2255 motion;’ and (2) whether the law
7 changed ‘in any way relevant’ to petitioner's claim after that first § 2255 motion.” Harrison, 519 F.3d
8 at 960 (quoting Ivy, 328 F.3d at 1060). “If an intervening court decision after a prisoner’s direct
9 appeal and first § 2255 motion ‘effect[s] a material change in the applicable law[,]’ then the prisoner
10 did not have an unobstructed procedural shot to present his claim.” Allen, 950 F.3d at 1190 (quoting
11 Alaimalo v. United States, 645 F.3d 1042, 1047-48 (9th Cir. 2011)). To demonstrate that a petitioner
12 lacked an unobstructed procedural shot, “it is not enough that the petitioner is presently barred from
13 raising his claim . . . by motion under § 2255. He must never have had the opportunity to raise it by
14 motion.” Ivy, 328 F.3d at 1060.
15 Petitioner claims this matter must be “reopened” as the legal landscape has changed such that
16 his claims are now cognizable. (Doc. 1 at 4). However, Petitioner does not demonstrate that the legal
17 landscape changed in any way material to his case. Petitioner first relies upon the New Mexico Court
18 of Appeal’s decision in Price. Id. at 2. The District Court for the District of New Mexico already
19 addressed Price in disposing of Petitioner’s first § 2255 action. Thompson, No. 1:12-cr-03013-JB-
20 CG-1 (Doc. 103).
21 Petitioner next cites Borden. (Doc. 1 at 2). In Borden, the Supreme Court determined that a
22 criminal offense that requires only a mens rea of recklessness cannot count as a “violent felony” under
23 the elements clause of the ACCA. 141 S. Ct. at 1834. However, Borden is inapplicable because
24 Petitioner was not convicted of a criminal offense that required only a mens rea of recklessness.
25 Petitioner also cites Wharton, to claim his sentence is invalid as his indictment does not contain
26 every essential element of the offense. (Doc. 1 at 2). Wharton arises outside the Ninth Circuit and,
27 thus, offers only persuasive authority to this Court. Moreover, the case was decided in 2014 and was
28 available to Petitioner in any of his previous pleadings and actions filed thereafter.
1 Lastly, Petitioner cites Concepcion. (Doc. 1 at 4). Concepcion involves the scope of district
2 court discretion in resentencing under the First Step Act. 142 S. Ct. 2389. The Supreme Court held
3 district courts must consider a party’s argument based on intervening changes in the law. Id. The
4 present petition involves neither the First Step Act nor resentencing by the district court. Accordingly,
5 Petitioner fails to satisfy the escape hatch criteria of § 2255, and this Court lacks jurisdiction over
6 Petitioner’s § 2241 petition.
7 Where, as here, a federal court lacks jurisdiction to consider a habeas petition, the court should
8 consider whether to transfer it to another court. 28 U.S.C. § 1631. A transfer of a habeas petition is
9 proper where: (1) the transferring court lacks jurisdiction; (2) the transferee court could have exercised
10 jurisdiction at the time the action was filed; and (3) the transfer is in the interest of justice. See Cruz-
11 Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001).
12 A transfer would not serve the interests of justice. The instant petition simply relitigates the
13 arguments Petitioner raised in his past § 2255 petitions. Thompson, No. 1:12-cr-03013-JB-CG-1
14 (Docs. 97, 125). A successive § 2255 petition in the sentencing court would have to be certified by the
15 Tenth Circuit to contain:
16 (1) Newly discovered evidence that, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence that no reasonable fact
17 finder would have found the movant guilty of the offense; or
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(2) a new rule of constitutional law, made retroactive to cases on collateral review by the
19 Supreme Court, that was previously unavailable.
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21 28 U.S.C. § 2255(h). Petitioner cannot meet either requirement. He has not shown newly discovered
22 evidence of his actual innocence and has failed to argue a new rule of constitutional law. Supra 8-9.
23 Accordingly, transfer of a successive § 2255 petition to the sentencing court would be futile.
24 Conclusion and Recommendations
25 Based on the foregoing, the Court concludes that Petitioner has not demonstrated that § 2255
26 constitutes an “inadequate or ineffective” remedy for raising his claims. § 2241 is not the proper
27 statute for raising Petitioner’s claims, and the petition should be dismissed for lack of jurisdiction.
28 Accordingly, it is HEREBY ORDERED: the Clerk of Court is directed to assign a District Judge to
! this action. The Court FURTHER RECOMMENDS that the petition for writ of habeas corpus (Doc.
2 1) be DISMISSED WITH PREJUDICE and without leave to amend for lack of jurisdiction.
These findings and recommendations will be submitted to the United States District Judge
‘ assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 21 days after being
° served with these findings and recommendations, Petitioner may file written objections with the Cou
° The document should be captioned “Objections to Magistrate Judge’s Findings and
’ Recommendations.” Petitioner is advised that failure to file objections within the specified time may
° result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)
(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
ll IT IS SO ORDERED.
12 || Dated: _ April 10, 2023 | □□ D
B UNITED STATES MAGISTRATE JUDGE
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