The opinion
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7 UNITED STATES DISTRICT COURT
8 FOR THE EASTERN DISTRICT OF CALIFORNIA
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10 COREY THOMAS JONES, No. 2:22-cv-2010 AC P
11 Petitioner,
12 v. ORDER AND FINDINGS AND
RECOMMENDATIONS
13 WARDEN,
14 Respondent.
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16 Petitioner, a federal prisoner proceeding pro se, has filed a petition for a writ of habeas
17 corpus pursuant to 28 U.S.C. § 2241 and paid the filing fee.
18 I. Background
19 On April 25, 2012, a jury found petitioner guilty of conspiracy to commit armed bank
20 robbery in violation of 18 U.S.C. § 371 and armed bank robbery in violation of 18 U.S.C. §§ 2
21 and 213(a), (b). ECF No. 1-1 at 2-3. During sentencing, the judge determined that petitioner was
22 a career offender and he was sentenced to concurrent terms of 60 months for the conspiracy and
23 200 months for the armed bank robbery. Id. at 2-3, 7.
24 II. The Petition
25 Petitioner does not challenge the validity of his convictions. Instead, argues that under
26 Mathis v. United States, 579 U.S. 500 (2016), and Descamps v. United States, 570 U.S. 254
27 (2013), his prior convictions for conspiracy to manufacture cocaine base and attempted
28 distribution of cocaine are not, and have never been, controlled substance offenses, and he is
1 therefore actually innocent of being a career offender. ECF No. 1 at 6; ECF No. 1-1 at 13-20.
2 Petitioner is currently incarcerated at FCI-Herlong, located in Lassen County, which is part of the
3 Sacramento Division of the United States District Court for the Eastern District of California.
4 See L.R. 120(d).
5 III. Challenging the Validity of a Conviction Under § 2241
6 A. Governing Legal Principles
7 Rule 4 of the Habeas Rules requires the court to summarily dismiss a habeas petition “[i]f
8 it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
9 relief in the district court.” “[A] petition for habeas corpus should not be dismissed without leave
10 to amend unless it appears that no tenable claim for relief can be pleaded were such leave
11 granted.” Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
12 In this case, petitioner is clearly challenging the legality of his sentence. “As a general
13 rule, Ԥ 2255 provides the exclusive procedural mechanism by which a federal prisoner may test
14 the legality of detention.’” Harrison v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008) (quoting
15 Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000)).
16 By the terms of section 2255, a prisoner authorized to apply for
section 2255 relief may not bring a section 2241 petition for a writ
17 of habeas corpus “if it appears that the applicant has failed to apply
for relief, by motion, to the court which sentenced him, or that such
18 court has denied him relief.”
19 Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988) (quoting 28 U.S.C. § 2255).
20 “Under the savings clause of § 2255, however, a federal prisoner may file a habeas corpus
21 petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is
22 ‘inadequate or ineffective to test the legality of his detention.’” Hernandez v. Campbell, 204 F.3d
23 861, 864-65 (9th Cir. 2000) (quoting 28 U.S.C. § 2255). “[A] § 2241 petition is available under
24 the ‘escape hatch’ of § 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has
25 not had an ‘unobstructed procedural shot’ at presenting that claim.” Stephens v. Herrera, 464
26 F.3d 895, 898 (9th Cir. 2006) (citations omitted). “[F]or Petitioner’s claim to be a legitimate §
27 2241 petition, he must satisfy both of those requirements.” Muth v. Fondren, 676 F.3d 815, 819
28 (9th Cir. 2012).
1 An inquiry into whether a § 2241 petition is proper . . . is critical to
the determination of district court jurisdiction, because the proper
2 district for filing a habeas petition depends upon whether the petition
is filed pursuant to § 2241 or § 2255. In particular, a habeas petition
3 filed pursuant to § 2241 must be heard in the custodial court . . . ,
even if the § 2241 petition contests the legality of a sentence by
4 falling under the savings clause.
5 Hernandez, 204 F.3d at 865.
6 If the petition is properly brought as a § 2241 petition, then this action is proper in this
7 court. However, if petitioner does not qualify for the narrow escape hatch exception, relief is
8 unavailable to him under § 2241 and the petition must be dismissed for lack of jurisdiction.
9 B. Petitioner Does Not Qualify for the Actual Innocence “Escape Hatch”
10 In Allen v. Ives, the Ninth Circuit held that a retroactive change of law that changed a
11 predicate crime into a non-predicate crime could allow a petitioner to establish actual innocence
12 of a career offender enhancement for purposes of qualifying for § 2255’s escape hatch. 950 F.3d
13 1184, 1190 (9th Cir. 2020). However, the Ninth Circuit subsequently limited application of Allen
14 to “petitioners who ‘received a mandatory sentence under a mandatory sentencing scheme.’”
15 Shepherd v. Warden, FCI-Tucson, 5 F.4th 1075, 1077 (9th Cir. 2021) (quoting Allen v. Ives, 976
16 F.3d 863, 869 (W. Fletcher, J., concurring in denial of the petition for rehearing en banc)). In
17 Shepherd, the court found that the petitioner in Allen was sentenced before the Supreme Court
18 decided United States v. Booker, 543 U.S. 220 (2005), when sentencing guidelines were
19 mandatory, and that the mandatory nature of the guidelines was important when deciding that
20 case. Shepherd, 5 F.4th at 1077.
21 In this case, petitioner was sentenced in 2012, after the sentencing guidelines were held to
22 be advisory. Moreover, the minute entry from sentencing reflects that the district judge heard and
23 considered petitioner’s objections to the career offender designation, determined that the
24 guidelines range was “properly assessed at a range of 262 to 327 months,” and that “[c]onsidering
25 the factors under § 3553 and considering the sentence of the co-defendant, the Court finds that a
26 sentence somewhat below the guideline range is appropriate.” United States v. Jones, No. 1:11-
27 cr-0530 CMH, (E.D. Va.), ECF No. 139. Petitioner therefore cannot show that he “received a
28 mandatory sentence under a mandatory sentencing scheme.”
] Because petitioner in this case was sentenced after the guidelines were rendered advisory,
2 || he “cannot show that he was actually innocent of the career offender enhancement utilized during
3 || sentencing,” Shepherd, 5 F.4th at 1078, and he does not qualify for § 2255’s escape hatch.
4 C. Dismissal is Appropriate
5 Since petitioner may not challenge his conviction through a § 2241 petition, he must do so
6 || ina § 2255 motion, which must be brought in the court which imposed the sentence. Although
7 || this court may transfer this action “to any other district or division where it might have been
8 | brought,” 28 U.S.C. § 1404(a), the petition indicates that petitioner has already pursued a § 2255
9 || motion (ECF No. | at 3-4) and there is no indication that the Fourth Circuit has granted petitioner
10 || leave to pursue a second or successive § 2255 motion. The court should therefore decline to
11 || construe the instant petition as a § 2255 motion and transfer it to the United States District Court
12 | for the Eastern District of Virginia, and the petition should be dismissed for lack of jurisdiction.
13 | See 28 U.S.C. § 2255(a).
14 CONCLUSION
15 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly
16 || assign a United States District Judge to this action.
17 IT IS FURTHER RECOMMENDED that the petition be dismissed for lack of
18 | jurisdiction.
19 These findings and recommendations are submitted to the United States District Judge
20 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days
21 || after being served with these findings and recommendations, petitioner may file written
22 || objections with the court. Such a document should be captioned “Objections to Magistrate
23 || Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections
24 || within the specified time may waive the right to appeal the District Court’s order. Martinez v.
25 || Yist, 951 F.2d 1153 (9th Cir. 1991).
26 || DATED: May 2, 2023 Z Al /
27 ALLISON CLAIRE
3g UNITED STATES MAGISTRATE JUDGE