NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 13 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN G. LEWIS, No. 19-35018

Petitioner-Appellant, D.C. No. 3:18-cv-01091-SI

v.

MEMORANDUM*

JOSIAS SALAZAR,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted September 2, 2020 Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and KENDALL,** District Judge.

Petitioner Martin G. Lewis appeals the district court’s decision denying his

28 U.S.C. § 2241 habeas petition for want of jurisdiction. The parties are familiar

with the facts, so we do not repeat them here. Jurisdiction over petitioner’s appeal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Virginia M. Kendall, United States District Judge for the Northern District of Illinois, sitting by designation. is conferred by 28 U.S.C. §§ 1291 and 2253. The Court reviews the dismissal of a

habeas corpus petition de novo. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.

2003). The Court also reviews de novo whether a district court has jurisdiction

over a § 2241 petition. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006).

We affirm.

A federal prisoner who wishes to challenge the legality of his federal

conviction or sentence generally must do so by way of a motion to vacate, set aside,

or correct the sentence under 28 U.S.C. § 2255. Harrison v. Ollison, 519 F.3d 952,

954 (9th Cir. 2008). Only the sentencing court has jurisdiction in a § 2255 case.

Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curium). A prisoner

challenging the manner, location, or conditions of that sentence’s execution must

bring a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the district

where the petitioner is in custody. Id.

Despite the limitations, an exception exists by which a federal prisoner may

seek relief under § 2241, referred to as the “savings clause” or “escape hatch” of

§ 2255. Harrison, 519 F.3d at 956. “[I]f, and only if, the remedy under § 2255 is

‘inadequate or ineffective to test the legality of his detention’” may a prisoner

proceed under § 2241. Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012)

(quoting Stephens, 464 F.3d at 897). We have recognized that it is a narrow

exception. Ivy, 328 F.3d at 1059. The exception will not apply merely because

2 § 2255’s gatekeeping provisions, such as the statute of limitations or the limitation

on successive petitions, now prevent the courts from considering a § 2255 motion.

Id.

We have held that § 2255 provides an “inadequate or ineffective” remedy,

allowing a petitioner to proceed under § 2241, when the petitioner: “(1) makes a

claim of actual innocence, and (2) has not had an unobstructed procedural shot at

presenting that claim.” Harrison, 519 F.3d at 959 (quoting Stephens, 464 F.3d at

898); accord Marrero, 682 F.3d at 1192.

Lewis believes the district court erred when it concluded that he had an

adequate procedural opportunity to present his claim that Burrage v. United States,

571 U.S. 204 (2014), has retroactive effect on the grounds that he raised it in two

other courts after his first § 2255 motion. Lewis argues this is reversible error under

Alaimalo v. United States, 645 F.3d 1042 (9th Cir. 2011). According to Lewis, the

correct timeframe under the inadequate or ineffective remedy framework stops at

the time he exhausted his first § 2255 motion because later proceedings were

“incorrectly barred on procedural grounds.”

Alaimalo explains that in determining whether the petitioner had an adequate

procedural opportunity, the court considers: “(1) whether the legal basis for

petitioner's claim did not arise until after he had exhausted his direct appeal and first

§ 2255 motion; and (2) whether the law changed in any way relevant to petitioner’s

3 claim after that first § 2255 motion.” 645 F.3d at 1047 (citing Harrison, 519 F.3d

at 960). The district court reasoned that while Lewis did not have an opportunity to

present his claim that Burrage has retroactive effect during his direct appeal or his

first § 2255 motion, he had already presented the claim in two separate motions for

leave to file a successive § 2255 motion in the Second Circuit and in another § 2241

habeas action in the Eleventh Circuit.

Because Lewis has already had multiple opportunities to bring his Burrage

claim, he cannot show that his remedy under § 2255 is inadequate or ineffective to

test the legality of his detention. The district court was correct to dismiss Lewis’s

petition for want of jurisdiction.

AFFIRMED.

4