1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JULIO AVILES, SR., Case No. 2:24-cv-00776-MRA-MRW

12 Petitioner, ORDER ACCEPTING FINDINGS 13 v. AND RECOMMENDATIONS OF

UNITED STATES MAGISTRATE

14 USP LOMPOC WARDEN,

JUDGE

15 Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records 19 on file, and the Report and Recommendation of the United States Magistrate Judge 20 (“Report”). Further, the Court has engaged in a de novo review of those portions of 21 the Report to which objections have been made. 22 The Report recommends dismissal of the Petition for lack of habeas 23 jurisdiction. (Dkt. No. 11.) As explained below, Petitioner’s Objections to the 24 Report (Dkt. No. 12) do not warrant a change to the Report’s findings or 25 recommendation. 26 Petitioner objects that jurisdiction exists because he is incarcerated at the 27 United States Penitentiary in Lompoc, California, which falls within the 28 jurisdictional limits of the Central District of California. (Dkt. No. 12 at 1.) 1 Petitioner is conflating personal jurisdiction with habeas jurisdiction. The Court 2 has personal jurisdiction over Petitioner’s custodian, the Warden, because the 3 Warden is in the Central District of California. See Malone v. Calderon, 165 F.3d 4 1234, 1237 (9th Cir. 1999) (citing Braden v. 30th Judicial Circuit Court, 410 U.S. 5 484, 495 (1973)). “The word ‘jurisdiction’ of course, is capable of different 6 interpretations.” Rumsfeld v. Padilla, 542 U.S. 426, 434 n.7 (2004). As the Report 7 explained, habeas jurisdiction is lacking because Petitioner has not shown that the 8 savings clause of 28 U.S.C. § 2255 permitted him to bring this action under 28 9 U.S.C. § 2241. (Dkt. No. 11 at 4 (citing Marrero v. Ives, 682 F.3d 1190, 1194 (9th 10 Cir. 2012).) 11 Petitioner objects that he properly brought this petition under 28 U.S.C. 12 § 2241 because he is alleging “actual innocence,” based on claims of the “fruit of 13 the poisonous tree and all the violations that he presented before at Pennsylvania 14 [D]istrict Court, and [n]ow presented here.” (Dkt. No. 12 at 2.) But by alleging 15 that he presented these claims earlier, before the Pennsylvania District Court, 16 Petitioner is conceding that he had an unobstructed procedural shot at presenting his 17 claims, meaning he is not entitled to raise the claims again under 28 U.S.C. § 2241. 18 (Dkt. No. 11 at 4.) 19 Petitioner similarly objects that he has a claim of actual innocence based on 20 “knowing perjury” relating to material matters that were presented to the grand 21 jury. (Dkt. No. 12 at 2; see also Dkt. No. 8 at 5.) But such a claim, which relies on 22 alleged contradictions between the grand jury transcript and the trial evidence, 23 could have been brought in Petitioner’s initial proceeding under 28 U.S.C. § 2255. 24 Indeed, the record of Petitioner’s 28 U.S.C. § 2255 proceeding shows that he did 25 raise a claim of false evidence during the grand jury proceeding. See United States 26 v. Aviles, et al., Case No. 1:15-cr-0181-MEM-1 (M.D. Pa.), Dkt. No. 964 at 8; Dkt. 27 No. 1000 at 23. Thus, as the Report found, Petitioner “had a procedural 28 1 || opportunity to pursue [his claims] in the court of conviction.” (Dkt. No. 11 at 5.) 2 || Thus, the claim is not properly brought under 28 U.S.C. § 2241. 3 In sum, Petitioner’s objections are overruled. 4 IT IS ORDERED that (1) the Report and Recommendation is approved and 5 || accepted; and (2) the action is dismissed without prejudice. 6 7 || DATED: June 28, 2024 8 hk 40 9 SARC aAREZ AAR 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28