Opinion
22-cv-04195 NC (PR)
07-27-2022
RHONDA FLEMING Petitioner, v. WARDEN JUSINO, Respondent.
ORDER OF TRANSFER
NATHANAEL M. COUSINS UNITED STATES MAGISTRATE JUDGE
This federal habeas action, in which petitioner is challenging “the validity of [her] conviction or sentence,” Dkt. No. 1 at 2, is TRANSFERRED to the United States District Court for the Southern District of Texas, as that is the district of conviction. See 28 U.S.C. §§ 1404(a), 2241(d); Habeas L.R. 2254-3(b).
Under limited circumstances, a prisoner may use 28 U.S.C. § 2241 to collaterally attack a conviction or sentence. See 28 U.S.C. § 2255(e) (known as the “escape hatch” provision). However, this “escape hatch” only applies when the prisoner “(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.” Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012).
Here, petitioner argues not that she needs to proceed under the “escape hatch,” but rather that her conviction is unconstitutional based on an intervening change in the law. See Pet. at 2. Accordingly, the instant petition properly should be filed before the United States District Court for the Southern District of Texas, and/or the United States Court of Appeals for the Fifth Circuit. See 28 U.S.C. § 2255(h)(2) (providing that a petitioner may seek permission from “the appropriate court of appeals” to file “[a] second or successive motion” for relief from conviction, based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable”).
The Clerk is directed to transfer this matter forthwith.
IT IS SO ORDERED.