Opinion
No. CV 07-0451-TUC-DCB (BPV).
July 29, 2008
REPORT AND RECOMMENDATION
On September 10, 2007, Anthony Scales, ("Petitioner"), presently confined in the United States Penitentiary, Tucson, Arizona, filed a Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. No. 1). Named as Respondent in the Petition is Warden Ricardo Chavez. Respondent filed a Return and Answer to Order to Show Cause why Petition for Writ of Habeas Corpus Should Not be Granted ("Answer") on October 22, 2007, with exhibits 1 through 3 attached. (Doc No. 8) Petitioner filed a reply ("Reply") on December 27, 2007. (Doc. No. 11)
Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bernardo P. Velasco for a Report and Recommendation. (Doc. No. 12)
For the reasons discussed below, the Magistrate Judge recommends that the District Court enter an order dismissing the Petition.
I. PROCEDURAL BACKGROUND
A. Trial and Sentence
On August 5 and 6, 1998, after a three day jury trial in the United States District Court for the Eastern District of Virginia, Petitioner was found guilty of distribution of crack cocaine; use and carry of a firearm during a crime of violence or drug trafficking offense; possession with intent to distribute crack cocaine; use and carry of a firearm during a crime of violence or drug trafficking offense; possession of a firearm by a convicted felon; obstruction of justice; attempted killing of a witness (tampering) and aiding and abetting; and possession with intent to distribute crack cocaine. (Return and Answer to Order to Show Cause (Doc. No. 8) "Answer" Ex. 3 — p 15-16 of Criminal Docket for Case No. CR 98-114 Eastern District of Virginia ("CR 98-114"); United States v. Scales, 2 Fed Appx. 390, 391 (4th Cir. 2001)). Petitioner received a life sentence under 18 U.S.C. § 3559, plus forty-five years. (Answer, Ex. 3, p. 18) Id. B. Motion to Correct Sentence
The factual background has been adequately summarized by the sentencing court in United States v. Scales, 231 F.Supp. 437 (E.D.Virg. 2002), and will not be restated in this report.
On June 30, 1999, the sentencing court treated a letter dated April 12, 1999, as a motion to correct sentence pursuant to Rule 35 of the Rules of Criminal Procedure; Petitioner's motion was denied as untimely by the sentencing count on June 30, 1999. (Answer, Ex. 3, p. 20)
C. Appeal
Petitioner appealed, alleging, among other things, that the sentencing court erred by sentencing him to a life conviction under 18 U.S.C. § 3559. Id. Petitioner filed a pro se supplemental brief, pursuant to Fed.R.App.P., 28(j), alleging that his drug sentences were invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000). Scales, Fed.Appx. at 392-93.
The United States Court of Appeals, Fourth Circuit, affirmed Petitioner's convictions and sentence. Id. The Fourth Circuit found that Petitioner's claim as to § 3559(c) failed for several reasons. First, the panel opinions that Petitioner relied upon for his argument had been vacated by their respective en banc courts, citing United States v. Kaluna, 192 F.3d 1188, 1197-98 (9th Cir. 1999) ( en banc), cert denied 529 U.S. 1056 (200); and United States v. Gatewood, 230 F.3d 186 (6th Cir. 2000) ( en banc). Second, because Petitioner failed to object to this sentence before the sentencing court, the Fourth Circuit reviewed this issue only for plain error, and found none. Scales, 2 Fed.Appx. at 393.
Petitioner, by counsel, subsequently filed a petition for a writ of certiorari with the United States Supreme Court, which was denied on June 11, 2001. See Scales v. United States, 533 U.S. 910 (2001) (NO. 00-9847).
D. Petition for Post-Conviction Relief
After Petitioner's conviction and sentence were upheld on appeal, Petitioner filed a pro se motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. Specifically, the sentencing court considered the motion to vacate, opposition, and reply thereto; the government's response to Petitioner's reply, Petitioner's reply to the government's response, and two letters from Petitioner, with attachments, one dated September 17, 2002, and the other dated November 11, 2002. United States v. Scales, 231 F.Supp.2d 437, n. 1, (E.D.Virg. 2002).
The sentencing court considered several claims of ineffective assistance of counsel, including Petitioner's claim that appellate counsel was ineffective in failing to challenge his sentence of mandatory life imprisonment on Count 7, pursuant to 18 U.S.C. § 3559(c). The sentencing court found that, contrary to Petitioner's contention, "appellate counsel did challenge on direct appeal [the sentencing court's] decision that defendant's 1981 robbery Conviction constituted a serious violent felony sufficient to qualify defendant for a sentence of life imprisonment under 18 U.S.C. § 3559(c)" Furthermore, the sentencing court found that the Fourth Circuit had also rejected this argument and affirmed the life sentence as to Count 7, and this was fatal to Petitioner's claim; the issue having been fully considered and rejected on direct appeal it could not now be relitigated by Petitioner through the use of a § 2255 motion. Scales, 231 F.Supp.2d at 445.
Additionally, the sentencing court found that, even assuming counsel's performance to be unreasonable, it simply did not prejudice Petitioner, as his sentence under 18 U.S.C. § 3559(c) was proper in all respects. Upon examination of the record it appeared that each of the requisite prior felony convictions, including Petitioner's 1981 robbery Conviction, was properly included in the § 3559(c) calculus, and Petitioner's arguments to the contrary are unsupported and unpersuasive. Scales, 231 F.Supp.2d at 445.
Thereafter, the Fourth Circuit denied Petitioner's motion for a certificate of appealability, and dismissed his appeal of the sentencing court's order denying relief on his motion filed under § 2255. See United States v. Scales, 60 Fed.Appx. 977 (4th Cir. 2003). Petitioner subsequently filed a petition for a writ of certiorari with the United States Supreme Court, which was denied on October 6, 2003. See Scales v. United States, 540 U.S. 911 (2001) (NO. 03-5474).
E. Motion to File Second or Successive Petition
Petitioner next filed a motion pursuant to 28 U.S.C. § 2244 for authorization to file a successive application for relief. This motion was denied by the Fourth Circuit Court of Appeals on November 4, 2005. (Answer, Ex. 3, p. 24, Doc. No. 100).
F. Federal Habeas
Petitioner has now filed a Petitioner under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody, challenging his sentence of life imprisonment under the federal "Three Strikes" statute, 18 U.S.C. § 3559(c), imposed by the United States District Court for the Eastern District of Virginia in matter # CR 98-114.
The sole ground Petitioner presents in his Petition in support of his request for habeas relief is that he is "actually factually innocent of the sentence enhancement he received under the `Three Strikes' statute."
II. DISCUSSION
A. Jurisdiction
A federal prisoner challenging the legality of a sentence must generally do so by motion raised in the sentencing court pursuant to 28 U.S.C. § 2255. See Harrison v. Ollison 519 F.3d 952, 954 (9th Cir. 2008) A prisoner who wishes to challenge the manner, location, or conditions of a sentence's execution must bring a petition pursuant to § 2241 in the custodial court. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). There is an exception, however, set forth in § 2255: A federal prisoner may file a habeas petition under § 2241 to challenge the legality of a sentence when the prisoner's remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255. This section of § 2255 is referred to as the "savings clause," or the "escape hatch." Hernandez, 204 F.3d at 864 n. 2; Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (internal quotation marks omitted). If a prisoner's claims qualify for the escape hatch of § 2255, the prisoner may challenge the legality of a sentence through a § 2241 petition in the custodial court. Hernandez, 204 F.3d at 865.
As the District Judge previously found, the Petitioner in this instance is clearly challenging the legality of his federally imposed sentence in this Petition. Thus, Petitioner may not proceed by way of this § 2241 Petition absent a showing that his remedy by way of a § 2255 motion is inadequate or ineffective to test the legality of his detention. (Doc. No. 4, p. 2)
1. Inadequate or Ineffective
The Ninth Circuit has recognized that the exception provided by the savings clause is a narrow one. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997); Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003) (a petitioner must show actual innocence and that he never had the opportunity to raise it by motion to demonstrate that § 2255 is inadequate or ineffective); Holland v. Pontesso, 234 F.3d 1277 (9th Cir. 2000) (§ 2255 not inadequate or ineffective because Petitioner misses statute of limitations); Aronson v. May, 85 S.Ct. 3, 5, 13 L.Ed.2d 6 (1964) (a court's denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843 F.2d at 1162-1163 (9th Cir. 1988) (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition inadequate); Williams v. Heritage, 250 F.2d 390 (9th Cir. 1957); Hildebrandt v. Swope, 229 F.2d 582 (9th Cir. 1956); see United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001) (procedural requirements of § 2255 may not be circumvented by invoking the All Writs Act, 28 U.S.C. § 1651). The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).
In the Ninth Circuit, a motion qualifies for the escape hatch of § 2255 "when a petition (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." See Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). It is not enough that a petitioner is presently barred from raising a claim of innocence by motion under § 2255, he must never have had the opportunity to raise it. Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003) (as amended).
2. Actual Innocence
The United States Supreme Court, in the context of procedural default, has recognized the actual innocence exception when the applicant can demonstrate actual innocence of the substantive offense, Murray v. Carrier, 477 U.S. 478, 496, (1986), or, in the capital sentencing context, of the aggravating circumstances rendering the inmate eligible for the death penalty, Sawyer v. Whitley, 505 U.S. 333 (1992). Although the issue whether the exception applies where an applicant asserts "actual innocence" of a non-capital sentence came before the Supreme Court recently, the Court declined to address the issue, instead, remanding to allow the district court to consider alternative grounds for relief, and obviating the need to reach the actual innocence question. Dretke v. Haley, 541 U.S. 386 (2004).
There is presently a split between the circuits on the issue, with the Seventh, Eighth, and Tenth Circuits holding that the exception does not apply to non-capital sentences, see United States v. Richards, 5 F.3d 1369 (10th Cir. 1993), Embrey v. Hershberger, 131 F.3d 739 (8th Cir. 1997), Hope v. United States, 108 F.3d 119 (7th Cir. 1997); the Fourth and Fifth Circuits holding that the actual innocence exception does apply in such cases, but only regarding those sentenced under habitual offender statutes, see Haley v. Cockrell, 306 F.3d 257 (5th Cir. 2002), vacated sub nom. Dretke v. Haley, 124 S. Ct. 1847 (2004), United States v. Mikalajunas, 186 F.3d 490 (4th Cir. 1999); and the Second Circuit alone holding that the exception applies to the sentencing phase of all non-capital cases, see Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162 (2nd Cir. 2000). The Ninth Circuit has not yet decided if the actual innocence exception does or does not apply to the sentencing phase of non-capital cases, or if it would apply in the more narrow circumstances, such as those in the case before this Court, of those sentenced under habitual offender statutes.
In the Ninth Circuit, a claim of actual innocence for purposes of the escape hatch of § 2255 is tested by the standard articulated by the Supreme Court in Bousley v. United States, 523 U.S. 614 (1998). Stephens, 464 F.3d at 898-899. That is, to establish actual innocence, "petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623 (internal quotation marks omitted); see also Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000) (quoting this passage from Bousley).
In this case, Petitioner asserts that he is "actually, factually innocent" of the sentencing enhancement under 28 U.S.C. § 3559(c), because the sentencing court relied on non-qualifying predicate felony convictions to enhance his sentence.
First, Petitioner contends that his predicate conviction F-5028, entered on April 14, 1981, for which he was sentenced to an indeterminate sentence of no more than 3 years imprisonment in accordance with Virginia Code § 19.2-311, is inconsistent with Virginia Code § 18.2-53.1, which requires imposition of a mandatory sentence upon a conviction for the use of a firearm during the commission of a felony, and thus prevents a trial court from sentencing a person to an indeterminate commitment to the Department of Corrections. (Petition, p. 5, Ex.s. A, B) Petitioner relies on LaFleur v. Com, 6 Va.App. 190 (1988) in support of his argument.
Petitioner's reliance on LaFleur is misplaced for many reasons. The defendant in LaFleur was convicted of four counts of use of a firearm in the commission of a felony, under Virginia Code § 18.2-53.1, in addition to four counts of robbery. Petitioner, however, was not convicted under Virginia Code § 18.2-53.1. Thus, unlike the defendant in LaFleur, there was no tension between sentencing statutes in Petitioner's case, as Petitioner was sentenced pursuant solely to Virginia Code § 19.2-311. Second, LaFleur was decided approximately seven years after Petitioner was sentenced. Thus, to the extent there had been any tension between sentencing statutes in Petitioner's case, it was not resolved in any way that would help to clarify Petitioner's conviction obtained in 1981. Presumably, LeFleur's case arose because of inconsistencies in the way trial courts applied the mandatory provisions of the firearm act versus the lenient provisions of the youthful offender act. LeFleur resolved those tensions, but only in the case in which a defendant was convicted under both statutes.
Thus, Petitioner's arguments are not persuasive and he has not met his burden of demonstrating that it is more likely than not that the predicate conviction, F-5028, is a non-qualifying predicate under 18 U.S.C. § 3559(c).
The second predicate conviction resulted from a two count indictment following charges in the United States District Court for the Eastern District of Virginia, charging Petitioner with assault with a dangerous weapon, and robbery in violation of 18 U.S.C. § 2111. (Petition, p. 6) Petitioner was found guilty by jury of count two, the robbery. (Petition, Ex. C) Petitioner asserts that neither the statute of conviction nor instructions to the jury required the findings for use of a firearm weapon in commission of the robbery. (Petition, p. 7)
It is not enough, however, under § 3559(c) for Petitioner to show that the Government did not prove that he was not convicted of using a firearm to commit the offense.
Title 18 U.S.C. § 3559(c)(1) provides:
Notwithstanding any other provision of law, a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if —
(A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of —
(i) 2 or more serious violent felonies; or
(ii) one or more serious violent felonies and one or more serious drug offenses; and
(B) each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant's conviction of the preceding serious violent felony or serious drug offense.
In 18 U.S.C. § 3559(c)(2)(F), Congress defines the term "serious violent felony" for the purpose of § 3559(c)(1) to mean:
(i) a Federal or State offense, by whatever designation and wherever committed, consisting of . . . robbery (as described in section 2111, 2113, or 2118); . . . or attempt, conspiracy, or solicitation to commit any of the above offenses; and
(ii) any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense[.]
Title 18 U.S.C. § 3559(c)(3)(A) provides in pertinent part:
Robbery . . . shall not serve as a basis for sentencing under this subsection [3559(c)] if the defendant establishes by clear and convincing evidence that —
(i) no firearm or other dangerous weapon was used in the offense and no threat of use of a firearm or other dangerous weapon was involved in the offense; and
(ii) the offense did not result in death or serious bodily injury . . . to any person.
Section 3559(c)(1) places the burden on the government to demonstrate that a defendant was convicted of at least two prior offenses that qualify as "serious violent felonies" under § 3559(c)(2)(F). U.S. v. Kaluna 192 F.3d 1188, 1193-1194 (9th Cir. 1999)
The government bears the burden of proving the qualifying prior convictions. Id. They have met that burden in this case. Petitioner's exhibits include jury instructions on count two, the robbery conviction, that demonstrate the defendant accomplished the robbery by force and violence, or by intimidation, and that the conviction was obtained pursuant to 18 U.S.C. § 2111, clearly included in the definition of serious violent felony. (Petition, Ex. C)
The burden is on Petitioner, then, to demonstrate the affirmative defense under § 3559(c)(3)(A). He does not meet this burden by showing that he was not found guilty of count one of the indictment, assault with a dangerous weapon. Petitioner must demonstrate, with evidence showing that it is more likely than not, that he had not used, or threatened to use, a firearm when committing his prior robberies, and that no serious bodily injury or death resulted. Kaluna, 192 F.3d at 1196. In this case, the burden is even more onerous, because he must prove these things to be not just legally true, but factually true.
To the extent the Ninth Circuit recognizes the application of the actual innocence exception to non-capital sentencing claims, Petitioner does not present a viable claim of innocence in this Petition. The court need not reach the issue of Petitioner's claim of actual innocence, however, because, as discussed below, Petitioner has not demonstrated that he has not had an "unobstructed procedural shot" at presenting his claim.
3. Unobstructed Procedural Shot
In this case, Petitioner states that he did not obtain the adjudication for the 1981 robbery, (Case No. 81-000-73A), until 2004, which was after Petitioner's initial § 2255 motion had been denied. Subsequently, Petitioner has been unsuccessful in attempts to work with the U.S. Probation office to correct errors in his presentence report. Accordingly, Petitioner filed a motion for appointment of counsel to prepare and submit a Writ of Coram Nobis on his behalf to correct his presentence report to reflect the actual adjudication by the court on both robberies that were used to enhance his sentence, but the sentencing court denied the motion for appointment of counsel. (Reply, p. 2; Petition, Exs. G, H)
In denying Petitioner's request for counsel, the sentencing court considered, pursuant to the "interests of justice" under 18 U.S.C. § 3006A(a)(2)(B), and "due concern for fundamental fairness," the likelihood of success of Petitioner's claims. (Petition, Ex. H) The sentencing court held that "the propriety of defendant's classification under § 3559(c) has been affirmed on both direct appeal and on petitioner's first collateral attack under 28 U.S.C. § 2255. . . . To the degree petitioner seeks assistance of counsel to assert claims not raised in his first § 2255 petition, those claims would likely be characterized as abusive and fail for lack of subject matter jurisdiction. . . . As petitioner stands virtually no chance of asserting this claim successfully even with an attorney, nothing will be gained by appointing counsel to purse this matter." (Petition, Ex. H) (internal citations omitted).
Petitioner asserts that, as the sentencing court has already indicated that Petitioner stands virtually no chance of asserting a claim in a successive § 2255 motion, thereby rendering a § 2255 motion inadequate and ineffective, Petitioner's only available avenue is a § 2241 petition.
Petitioner, however, cannot demonstrate that he "has not had an unobstructed procedural shot" at presenting his claim, and thus does not qualify for the escape hatch provision of § 2255. See Harrison v. Ollison, 519 F.3d 952, 961, (9th Cir. 2008). Petitioner's claim was available the day he was given notice of the sentencing enhancement, and certainly, no later than the date of sentencing. Petitioner could have raised it in his initial § 2255 petition. The legal and factual basis for Petitioner's claim was available to Petitioner prior to exhaustion of his direct appeal and presentation of his first § 2255 motion. In fact, Petitioner asserts that he presented copies of the F-5028 adjudication in his initial § 2255, "which the district court failed to consider, or make part of the record." (Petition, p. 6) Thus, he has not been denied a chance to present it. Consequently, the fact that he may be procedurally barred from raising it now does not mean that § 2255's remedy was "inadequate or ineffective." The denial of a prior § 2255 motion or its equivalent does not render it inadequate or ineffective. Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court's denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (rejecting contention that § 2255 motion might be ineffective or inadequate because the prisoner's § 2255 motion might be second or successive). Accordingly, this Court concludes that Petitioner has failed to carry his burden to demonstrate that the remedy available under section 2255 is inadequate or ineffective. Hence, should Petitioner wish to pursue this claim in federal court, he must do so by way of a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Having established that Petitioner has not demonstrated that a motion under § 2255 is inadequate or ineffective to test the legality of his detention, this Court cannot construe the instant petition as a § 2255 motion because it lacks jurisdiction over such a motion. See Collins v. Pontesso, 54 Fed.Appx. 665, n. 1 (9th Cir. 2003); Tripati, 843 at 1162 (stating that a § 2255 motion must be filed in the sentencing court). Moreover, Petitioner has already filed one motion pursuant to § 2255, and he would therefore be required to seek the approval of the Fourth Circuit before the district court could accept it. See 28 U.S.C. §§ 2255, 2244(b)(3)(A).
III. RECOMMENDATION
After careful consideration of the Petition and all papers filed in this action, the Magistrate Judge recommends that the District Court dismiss this action in its entirety.
Petitioner has not demonstrated that he has not had an "unobstructed procedural shot" at presenting his claim, nor has he demonstrated a claim of actual innocence, the Magistrate Judge recommends that the District Judge find that the Petitioner may not proceed by way of this § 2241 Petition.
The Ninth Circuit has instructed that, once a custodial court concludes that a petition brought under § 2241 is actually a motion pursuant to § 2255, and that motion would be a second or successive petition the filing of which has not been authorized by the court of appeals, the custodial court should dismiss the motion. See Hernandez v. Campbell, 204 F.3d at 866.
Pursuant to Title 28 U.S.C. § 636(b), any party may serve and file written objections within 10 days of being served with a copy of this Report and Recommendation. If objections are not timely filed, they may be deemed waived.
If objections are filed, the parties should use the following case number: CV 07-0451-TUC-DCB (BPV).