# (HC) Emasealu v. United States

> District Court, E.D. California · April 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10052116

## Case

- **Court:** District Court, E.D. California
- **Decided:** April 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 TOM INEZE EMASEALU, Case No. 1:22-cv-01047-CDB (HC)

12 Petitioner, ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS AND
13 v. DISMISSING THE PETITION FOR WRIT
OF HABEAS CORPUS WITH
14 UNITED STATES OF AMERICA, PREJUDICE

15 Respondent. (Docs. 1, 6)

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Petitioner Tom Ineze Emasealu is a federal prisoner proceeding pro se with a petition for
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writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed August 19, 2022.1 (Doc. 1).
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Pending before the Court is Respondent’s motion to dismiss, filed March 16, 2023. (Doc.
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13). Petitioner had 21-days from the date the motion was filed (e.g., no later than April 6, 2023)
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to file an opposition to Respondent’s motion. (Doc. 8). As of the date of this order, Petitioner
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has not filed an opposition, and the time to do so has passed. For the reasons set forth below, the
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Court grants Respondent’s motion and dismisses the petition with prejudice.
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Background
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Petitioner currently is serving a 111-month sentence imposed by the District Court for the
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1 The parties have consented to the jurisdiction of the United States Magistrate Judge and
this action has been assigned to Magistrate Judge Christopher D. Baker for all purposes. (Doc.
1 Southern District of Texas on April 24, 2017, following Petitioner’s convictions for numerous
2 counts of access device fraud, wire fraud and aggravated identity theft. (See Mot. to Dismiss,
3 Appendix (“Appx.”), Doc. 13-1, at pp. 1-28).
4 In his habeas corpus petition, Petitioner challenges an order of removal entered against
5 him on January 30, 2020 (Appx. At pp. 29-30) on the grounds that the immigration judge
6 misapplied Supreme Court precedent and violated Petitioner’s due process rights. See generally
7 Doc. 1. The Board of Immigration Appeals (BIA) affirmed the order of removal, and Petitioner’s
8 application for review was denied by the Fifth Circuit Court of Appeals. (See id. at pp. 29-35).
9 Jurisdiction
10 In general, a federal prisoner who wishes to challenge the validity or constitutionality of
11 his federal conviction or sentence must do so by way of a motion to vacate, set aside, or correct
12 the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988);
13 Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007). In
14 such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163; Hernandez v.
15 Campbell, 204 F.3d 861, 864 (9th Cir. 2000).
16 In contrast, a prisoner challenging the manner, location, or conditions of that sentence’s
17 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district
18 where the petitioner is in custody. Hernandez, 204 F.3d at 865. Section 2241(a) provides that
19 writs of habeas corpus may be granted by the district courts “within their respective
20 jurisdictions.” A writ of habeas corpus operates not upon the prisoner, but upon the prisoner’s
21 custodian. Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-495 (1973). A petitioner
22 filing a petition for writ of habeas corpus under § 2241 generally must file the petition in the
23 judicial district of the petitioner’s custodian. Brown v. United States, 610 F.2d 672, 677 (9th Cir.
24 1990). Jurisdiction by the custodial district “is not destroyed by a transfer of the petitioner and
25 the accompanying custodial change.” Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990)
26 (quoting Santillanes v. United States Parole Comm’n, 754 F.2d 889, 888 (10th Cir. 1985)).
27 “The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by
1 availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.”
2 Stephens, 464 F.3d at 897. An exception exists by which a federal prisoner may challenge the
3 validity or constitutionality of his federal conviction or sentence under § 2241, referred to as the
4 “savings clause” or “escape hatch” of § 2255. Id.; Harrison v. Ollison, 519 F.3d 952, 956 (9th
5 Cir. 2008). Under the § 2255 escape hatch, “a federal prisoner may file a § 2241 petition if, and
6 only if, the remedy under § 2255 is ‘inadequate or ineffective to test the legality of his
7 detention.’” Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012) (quoting Stephens, 464 F.3d at
8 897).
9 A remedy is not deemed “inadequate or ineffective” merely because § 2255’s gatekeeping
10 provisions prevent the petitioner from filing a second or successive petition. Ivy v. Pontesso, 328
11 F.3d 1057, 1059 (9th Cir. 2003); accord Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per
12 curiam) (§ 2255 not inadequate or ineffective simply because the district court dismissed the §
13 2255 motion as successive and court of appeals did not authorize a successive motion). Instead,
14 the Ninth Circuit has held that § 2255 provides an “inadequate and ineffective” remedy (and thus
15 that the petitioner may proceed under Section 2241) when the petitioner: (1) makes a claim of
16 actual innocence, and (2) has never had an “unobstructed procedural shot” at presenting the
17 claim. Harrison, 519 F.3d at 959; Stephens, 464 F.3d at 898; accord Marrero, 682 F.3d at 1192.
18 The petitioner bears the burden to show that remedy under § 2255 is inadequate or ineffective.
19 Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). If a petitioner fails to meet this burden,
20 then his § 2241 petition must be dismissed for lack of jurisdiction. Ivy, 328 F.3d at 1060.
21 Moreover, where a party seeks to challenge an order of removal, the Immigration and
22 Nationality Act (“INA”) provides that a petition for review filed with an appropriate court of
23 appeals “shall be the sole and exclusive means for judicial review” of such removal order.
24 Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012) (quoting 8 U.S.C. § 1252(a)(5)). “The
25 statute, by its plain language, applies only to ‘judicial review of an order of removal’ and does not
26 eliminate the ability of a court to review claims that are ‘independent of challenges to removal
27 orders.’” Id.
1 | Analysis
2 Petitioner challenges neither the validity or constitutionality of his federal conviction or
3 | sentence, nor the manner, location, or conditions of that sentence’s execution. Instead, he
4 | challenges an order of removal entered by an immigration judge and affirmed by the Board of
5 | Immigration Appeals (BIA), and for which he unsuccessfully sought review by the Fifth Circuit
6 | Court of Appeals. (Doc. 1, pp 2-3, 5). That petitioner squarely and directly challenges only an
7 | order of removal is confirmed by his filing in this habeas action of a “Motion to Reopen Order of
8 | Removal” (Doc. 6), which is a copy of the same motion he filed in the Fifth Circuit seeking
9 | review of the BIA affirmance.
10 “Congress has clearly provided that all claims — whether statutory or constitutional — that
11 | ‘arise from’ immigration removal proceedings can only be brought through the petition for review
12 | process in the federal courts of appeals.” .E.F.M v. Lynch, 837 F.3d 1026, 1029 (9th Cir. 2016)
13 (citing 8 U.S.C. § 1252(a) and 1252(b)(9)). Petitioner has no argument that his challenge here is
14 | “independent of,” “collateral to” or otherwise anything but “inextricably intertwined with” the
15 | removal process. /d. at 1033. Accordingly, the Court concludes that the petition must be
16 | dismissed because this Court lacks subject-matter jurisdiction over it.
17 | Conclusion and Order
18 For the forgoing reasons, it is HEREBY ORDERED that Respondent’s motion to dismiss
19 | (Doc. 13) is GRANTED, and Petitioner’s petition for habeas corpus (Doc. 1) is DISMISSED
20 | WITH PREJUDICE.
21 It is FURTHER ORDERED that Petitioner’s motion to reopen the order of removal (Doc.
22 | 6) is DENIED AS MOOT.
23 The Clerk of the Court is directed to close the case.
24 | IT IS SO ORDERED.
> | Dated: _ April 19, 2023 | br Pr
26 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10052116. Public record. Not legal advice.