Opinion
No. 07-56621.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed September 23, 2008.
Rosalinda Wang, Esq., Office of the U.S. Attorney Criminal Division, Los Angeles, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Central District of California, George P. Schiavelli, District Judge, Presiding. D.C. No. CV-06-06872-GPS.
Before: TASHIMA, SILVERMAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir.R. 36-3.
Vaatausili Mark Alaimalo, a federal prisoner, appeals pro se the dismissal for lack of subject matter jurisdiction of his 28 U.S.C. § 2241 habeas corpus petition seeking to vacate the life sentence imposed following his conviction for three counts of importation of methamphetamine and three counts of possession of methamphetamine with intent to distribute. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Alaimalo contends that the district court erred in failing to address on the merits his claim that under United States v. Cabaccang, 332 F.3d 622 (9th Cir. 2003) (en banc), he is actually innocent of importation because the methamphetamine involved in the offenses had traveled inside United States territory between California and Guam. The district court correctly concluded that 28 U.S.C. § 2255 was not an inadequate or ineffective remedy so as to allow Alaimalo to proceed under § 2241. See Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008) (stating that § 2255 escape hatch criteria met when petitioner claims actual innocence and has not had unobstructed procedural shot at presenting that claim). We note that, as stated in the answering brief, even if Alaimalo were successful in his actual innocence claim, his life sentence would not be affected.
Alaimalo also contends that the district court erred in referring the case to a magistrate judge for consideration of preliminary matters and the preparation of a report and recommendation. The Federal Magistrates Act authorized the district court to refer the case. See United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir. 2003) (en banc).
Appellant's motion to supplement the record and motion for judicial notice are granted.