The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TERRO LAJUAN BELL,
Case No. 3:20-cv-00467-JE
Petitioner,
FINDINGS AND RECOMMENDATION
v.
JOSIAS SALAZAR,
Respondent.
JELDERKS, Magistrate Judge.
Petitioner, a prisoner at FCI-Sheridan, filed this 28
U.S.C. § 2241 habeas corpus case on March 19, 2020 challenging
the validity of his federal sentence in the District of North
Dakota imposed on August 25, 2016. For the reasons that follow,
the Petition should be summarily dismissed for lack of
jurisdiction.
BACKGROUND
On February 5, 2016, Petitioner pled guilty to one count of
Conspiracy to Possess with Intent to Distribute a Controlled
Substance. As Petitioner acknowledged in his Plea Petition,
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because his criminal history included two prior felony drug
convictions from the State of Washington, his guilty plea to the
Conspiracy charge subjected him to a mandatory life sentence.
See 21 U.S.C. § 841. The Government, however, filed for a
downward departure sentence and the Court sentenced Petitioner
to a 180-month prison term. Petitioner did not take a direct
appeal.
On July 24, 2017 Petitioner filed a 28 U.S.C. § 2255 motion
alleging that his prior convictions did not qualify him for an
enhanced sentence, and that his attorney was ineffective for not
raising such a challenge. On May 1, 2018, the District of North
Dakota concluded that it properly considered the prior drug
convictions at sentencing and denied relief. Petitioner appealed
that decision but on July 9, 2019, the Eighth Circuit Court of
Appeals declined to issue a certificate of appealability and
dismissed the appeal. Petitioner now asks this Court to provide
him habeas corpus relief from what he believes to be an illegal
sentence predicated on prior felony convictions that do not
support a statutory enhancement.
DISCUSSION
“A federal prisoner who seeks to challenge the legality of
confinement must generally rely on a § 2255 motion to do so.”
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Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). However,
under the “savings clause” or “escape hatch” of § 2255(e), a
federal inmate may seek relief pursuant to 28 U.S.C. § 2241 “if,
and only if, the remedy under § 2255 is ‘inadequate or
ineffective to test the legality of his detention.’” Id (citing
Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006).
A petitioner satisfies the savings clause of § 2255(e)
where he: "(1) makes a claim of actual innocence, and (2) has
not had an unobstructed procedural shot at presenting that
claim." Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006)
(internal quotation marks omitted). The two factors to consider
when assessing whether petitioner had an unobstructed procedural
opportunity to present his claim of innocence are: (1) whether
the legal basis for petitioner's claim did not arise until the
conclusion of his direct appeal and first 28 U.S.C. § 2255
motion; and (2) whether the applicable law changed in any
relevant way after the conclusion of the petitioner's first
§ 2255 motion. Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir.
2008).
In this case, Petitioner asserts that intervening decisions
by the Supreme Court constitute a change in the law which made
it impossible for him to make the particular challenge to his
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sentence in his prior proceedings that he does in his habeas
corpus Petition.1 Specifically, he provides:
“The Supreme Court’s intervening decisions
in Descamps v. U.S., 570 U.S. 254 (2013),
and Mathis v. U.S., 136 S. Ct. 2243 (2016),
along with the Ninth Circuit’s rulings in
U.S. v. Valdivia-Flores, 876 F.3d 1201 (9th
Cir. 2017), and U.S. v. Brown, 879 F.3d 1048
(9th Cir. 2018), establish that the
petitioner’s Washington State controlled
substance conviction is an invalid predicate
offense.”
Petition (#1), p. 17.
Assuming that Petitioner’s challenge to a sentencing
enhancement amounts to a cognizable claim of actual innocence
where he does not claim to be innocent of any of his crimes of
conviction,2 he still cannot avail himself of the § 2255(e)
savings clause. The Supreme Court cases upon which he relies do
not constitute intervening cases. The Supreme Court decided
Mathis on June 23, 2016, and it issued its decision in Descamps
1 Although Petitioner cites cases from the Fourth and Ninth Circuits, the
intervening change in the law that is relevant to his claims arises from the
Supreme Court’s decisions in Descamps and Mathis where it “made clear that a
court may not look behind the elements of a generally drafted [indivisible]
statute to identify the means by which a defendant committed a crime.”
Mathis, 136 S.Ct. at 2255. In any event, the circuit cases Petitioner cites
not only predate the decision in his 2255 action, but also do not support his
argument in this case.
2 In Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020), the Ninth Circuit recently
concluded that one can be actually innocent of a non-capital sentence. The
Court of Appeals is currently awaiting briefing on whether to rehear that
case en banc.
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on June 20, 2013. Both of these decisions not only predate the
District of North Dakota’s resolution of Petitioner’s 28 U.S.C.
§ 2255 motion on May 1, 2018, but also predate Petitioner’s
filing of his § 2255 motion on July 24, 2017 by more than a
year. In this respect, Petitioner cannot credibly assert that he
lacked an unobstructed procedural opportunity to present his
claims during the course of his § 2255 motion thereby rendering
the § 2255 remedy ineffective. Where Petitioner cannot avail
himself of the savings clause so as to establish 28 U.S.C.
§ 2241 jurisdiction, the Court should dismiss the habeas corpus
Petition. See Rule 1(b) and Rule 4, Rules Governing Section 2254
Cases (permitting summary dismissal of § 2254 and other habeas
corpus cases).
RECOMMENDATION
The Court should enter a judgment dismissing the Petition
for Writ of Habeas Corpus (#1) for lack of jurisdiction. The
judgment should also decline to issue a certificate of
appealability on the basis that Petitioner has not made a
substantial showing of the denial of a constitutional right
pursuant to 28 U.S.C. § 2253(c)(2).
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SCHEDULING ORDER
This Findings and Recommendation will be referred to a
district judge. Objections, if any, are due within 17 days.
Where no respondent has appeared in this case, the Findings and
Recommendation will go under advisement on that date.
DATED this 2 0 t h day of July, 2020.
_____ ________________
/s/John Jelderks
John Jelderks
United States Magistrate Judge
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