Roberto Rios-Vizcarra v. George Wigen

MEMORANDUM

Petitioner Rios-Vizcarra appeals the dismissal of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 . Rios-Vizcarra claims that a prior state conviction in California should not be construed as a “prior drug felony” for the purposes of 21 U.S.C, § 841(b)(1)(A) after the Supreme Court’s decision in Descamps v. United States, — U.S. —, 133 S.Ct. 2276 , 186 L.Ed.2d 438 (2013). The district court held that his motion did not qualify as a petition under 28 U.S.C. § 2241 , because it did not claim actual innocence, and dismissed it. We have appellate jurisdiction under 28 U.S.C. § 1291 , and affirm.

The district court did not err when it concluded that Rios-Vizcarra failed to satisfy the requirement of the § 2255(e) escape hatch. Even if it is possible for a petitioner to “be actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch,” Marrero v. Ives, 682 F.3d 1190, 1193 , (9th Cir. 2012), Rios-Vizcarra fails to make a plausible showing of actual innocence. Rios-Vizcarra does not allege that he was factually innocent of the state conviction, nor was Rios-Vizcarra statutorily ineligible to receive his…