Pedro Hernandez v. United States

MEMORANDUM

Pedro Hernandez appeals from the district court’s judgment denying his 28 U.S.C. § 2241 petition challenging his conviction and sentence for drug crimes and money laundering. Because the district court lacked jurisdiction over the petition, we vacate and remand.

Hernandez argues that he satisfies the requirements of the “escape hatch” of 28 U.S.C. § 2255 (e). This argument fails because Hernandez does not argue that he is actually innocent of the charges of conviction, and the challenges that he advances in his petition could have been raised on direct appeal or in his section 2255 motion. See Stephens v. Herrera, 464 F.3d 895, 898-99 (9th Cir.2006) (instructional error consisting in failure to require unanimity is not a claim of “actual innocence” for escape hatch purposes); Harrison v. Ollison, 519 F.3d 952, 961 (9th Cir.2008) (petitioner who could have raised claim on direct appeal or in his first § 2255 motion cannot show that he did not have “unobstructed procedural shot” at raising claim to qualify for escape hatch). Accordingly, Hernandez’s petition is not properly brought under section 2241 but is, rather, a disguised successive section 2255 motion over which…