Case 2:21-cv-09934-GW-KES Document 3 Filed 01/11/22 Page 1 of 5 Page ID #:14

1 2 O

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10

11 JASON A. GREEN, Case No. 2:21-cv-09934-GW-KES

12 Petitioner,

ORDER DISMISSING PETITION

13 v.

WITHOUT PREJUDICE

14 FELICIA PONCE, Warden,

15 Respondent.

16

17

18 On December 23, 2021, the Court received a filing from Jason A. Green

19 (“Petitioner”), a prisoner in the custody of the federal Bureau of Prisons who is

20 housed at Federal Correctional Institute (“FCI”) Terminal Island in the Central 21 District of California. (Dkt. 1.) The filing is entitled “Motion for Release, Remand 22 Was Procedurally and Substantively Unreasonable, Excessive Incarceration [28 23 U.S.C. § 2241].” (Id. at 1.) Because of the reference to 28 U.S.C. § 2241, the 24 Court interprets the filing as a petition for writ of habeas corpus under that statute. 25 Under Rule 4 of the Rules Governing Section 2254 and 2255 Cases, the 26 Court “must promptly examine” any new habeas petition, and “[i]f it plainly 27 appears from the petition and any attached exhibits that the petitioner is not entitled 28 1 Case 2:21-cv-09934-GW-KES Document 3 Filed 01/11/22 Page 2 of 5 Page ID #:15

1 to relief in the district court,” then the Court “must dismiss the petition….”1 Under 2 Rule 1(b), the Court may apply the rules to petitions filed under § 2241. For the 3 reasons explained below, the Petition is dismissed without prejudice. 4 I. 5 BACKGROUND 6 The following facts are taken from the Petition and public records subject to 7 judicial notice2: 8 In October 2015, Petitioner was arrested and charged with conspiracy to 9 commit mail, wire, and bank fraud in the U.S. District Court for the Eastern District 10 of New York. (Dkt. 1 at 1); United States v. Green, No. 1:15-cr-00498-NGG-2 11 (E.D.N.Y.), Dkt. 1, 6. He pled guilty to this charge3 and, in April 2017, he was 12 sentenced to time served plus 5 years of supervised release. Id., Dkt. 48, 72. In 13 2019 or 2020, Petitioner moved from New York to Nevada, and his supervision 14 was transferred to the District of Nevada. (Dkt. 1 at 2); Green, No. 1:15-cr-00498, 15 Dkt. 111. 16 In August 2021, Petitioner was accused of violating the terms of his 17 supervised release by failing to pay 10% of his gross monthly income to restitution 18 and failing to disclose financial information. Id., Dkt. 117, 120, 123. In September 19

20 1 The rules are available online at: https://www.uscourts.gov/sites/default/ files/rules-governing-section-2254-and-section-2255-proceedings.pdf. 21 2 See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is 22 not subject to reasonable dispute because it … can be accurately and readily 23 determined from sources whose accuracy cannot reasonably be questioned.”); Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (“We may take 24 judicial notice of undisputed matters of public record … including documents on 25 file in federal or state courts.”). 26 3 The indictment included additional charges, but the government dismissed 27 them after Petitioner pled guilty to the count described above. Green, No. 1:15-cr- 00498-NGG-2, Dkt. 72 at 1. 28 2 Case 2:21-cv-09934-GW-KES Document 3 Filed 01/11/22 Page 3 of 5 Page ID #:16

1 2021, he pled guilty to the violations and, at the sentencing hearing, the New York 2 court orally sentenced him to 14 months in custody followed by 5 years of 3 supervised release. Id., Dkt. 123, 127, 132-1 at 47-48. However, the prosecutor 4 and Probation Department later moved the court to amend the supervised release 5 term, arguing that under 18 U.S.C. § 3583(h), the maximum allowable term of 6 supervised release was 3 years and 10 months. Id., Dkt. 124 at 1. The court 7 modified its oral ruling accordingly, entering an order sentencing him to 14 months 8 in custody followed by 3 years and 10 months of supervised release. Id., Dkt 128. 9 On October 15, 2021, Petitioner filed a notice of appeal through counsel 10 who represented Petitioner in the district court violation proceedings. Id., Dkt. 126. 11 However, on November 8, 2021, the U.S. Court of Appeals for the Second Circuit 12 granted counsel’s motion to withdraw; counsel stated that Petitioner reported 13 retaining new counsel. United States v. Green, No. 21-2663 (2d Cir.), Dkt. 17, 20. 14 As of January 7, 2022, no other attorney has entered an appearance in the appeal. 15 On January 4, 2022, the Second Circuit issued orders stating that the appeal would 16 be dismissed unless Petitioner submitted certain forms by January 25, 2022. Id., 17 Dkt. 29, 30. 18 On December 19, 2021, Petitioner constructively filed4 the instant Petition, 19 which argues “that he is being punished in excess of the maximum allowable under 20 18 U.S.C. § 3583(h)” because “anything above 8 months,” i.e., the amount of time 21 left on his original 5-year term of supervised release when he was accused of 22

23 4 “Under the mailbox rule, a prisoner’s pro se habeas petition is deemed filed when he hands it over to prison authorities for mailing to the relevant court.” 24 Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citation omitted); see 25 also Houston v. Lack, 487 U.S. 266, 268 (1988). A court generally deems a habeas petition filed on the day it is signed, because it assumes the petitioner turned the 26 petition over to prison authorities for mailing that day. See Butler v. Long, 752 27 F.3d 1177, 1178 n.1 (9th Cir. 2014); Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). 28 3 Case 2:21-cv-09934-GW-KES Document 3 Filed 01/11/22 Page 4 of 5 Page ID #:17

1 violating it, “was plain error and in violation of the statute….” (Dkt. 1 at 3-4.) 2 II. 3 LEGAL STANDARDS 4 28 U.S.C. § 2255 states that a federal prisoner “may move the court which 5 imposed [his] sentence to vacate, set aside or correct the sentence” on the ground 6 that the sentence “was imposed in violation of the Constitution or laws of the 7 United States, or that the court was without jurisdiction to impose such sentence, or 8 that the sentence was in excess of the maximum authorized by law, or is otherwise 9 subject to collateral attack….” 28 U.S.C. § 2255(a). Generally, § 2255 provides 10 the exclusive procedural mechanism by which a federal prisoner may test the 11 legality of his detention, and a motion under § 2255 is properly filed in the court 12 that sentenced the petitioner. Alaimalo v. United States, 645 F.3d 1042, 1046 (9th 13 Cir. 2011); Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). In contrast, 14 “petitions that challenge the manner, location, or conditions of a sentence’s 15 execution must be brought pursuant to § 2241 in the custodial court.” Id. 16 Additionally, “a federal prisoner may file a habeas petition under § 2241 if 17 the remedy provided by § 2255 is ‘inadequate or ineffective to test the legality of 18 his detention.” Alaimalo, 645 F.3d at 1046 (quoting 28 U.S.C. § 2255(e)). “This is 19 called the ‘savings clause’ or ‘escape hatch’ of § 2255.” Id. at 1047. “A petition 20 meets the escape hatch criteria where a petitioner ‘(1) makes a claim of actual 21 innocence, and (2) has not had an unobstructed procedural shot at presenting that 22 claim.” Id. (quoting Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006)). 23 “[F]or reasons of judicial economy, [a] district court should not entertain a 24 habeas corpus petition” or a motion under § 2255 “while there is an appeal pending 25 in [the U.S. Court of Appeals] or in the Supreme Court.” United States v. Pirro, 26 104 F.3d 297, 299 (9th Cir. 1997) (quotation marks omitted; citing United States v. 27 Deeb, 944 F.2d 545, 548 (9th Cir. 1991)). “[A] district court’s delay in considering 28 a section 2255 motion until direct appeals are resolved does not make the section 4 Case 2:21-cv-09934-GW-KES Document Filed 01/11/22 Page5of5 Page |ID#:18

1 | 2255 motion inadequate or ineffective and therefore does not entitle the defendant 2 | prematurely to pursue a section 2241 habeas petition.” Pirro, 104 F.3d at 299. 3 III. 4 DISCUSSION 5 The Petition in this case does not demonstrate that a motion under § 2255 in 6 | the sentencing court (the Eastern District of New York) is inadequate or ineffective 7 | to test the legality of Petitioner’s detention. The Petition does not raise a claim of 8 | actual innocence, and it does not demonstrate that Petitioner lacked an unobstructed 9 || procedural shot at presenting the claim raised in the Petition. Indeed, the direct 10 | appeal currently pending in the Second Circuit appears to provide Petitioner with an 11 | opportunity to raise this claim. Dismissal of the Petition, rather than transfer to the 12 | Eastern District of New York for consideration under § 2255, is appropriate 13 | because the pending appeal also likely means that a § 2255 motion would be 14 | dismissed premature. 15 IV. 16 CONCLUSION 17 IT IS THEREFORE ORDERED that the Petition (Dkt. 1) and this action are 18 | dismissed without prejudice to Petitioner pursuing the pending appeal in the 19 | Second Circuit, filing a motion under § 2255 in the Eastern District of New York, 20 | or filing a later habeas petition under § 2241 challenging the sentence in this Court 21 | (when and if appropriate). 22 23 | DATED: January 11, 2022 fry ee es

4 GEORGE H. WU

UNITED STATES DISTRICT JUDGE

2 Presented by: | Troms E. Seot 27 | KAREN E. SCOTT 9g | UNITED STATES MAGISTRATE JUDGE