Case 2:21-cv-07195-FLA-MAR Document 14 Filed 04/05/22 Page 1 of 7 Page ID #:179

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 OWEN GARTH HINKSON, Case No. 2:21-cv-7195-FLA (MAR) 11 Petitioner,

MEMORANDUM AND ORDER

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DISMISSING THE ACTION

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WARDEN OF FCI LOMPOC,

14 Respondent. 15 16 I. 17 INTRODUCTION 18 On August 25, 2021, Petitioner constructively filed the instant Petition for 19 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“section 2241”). ECF 20 Docket No. (“Dkt.”) 1. On October 5, 2021, the court issued an Order to Show 21 Cause (“OSC”) why this action should not be dismissed for lack of jurisdiction. 22 Dkt. 6. On March 7, 2022, Petitioner filed a First Amended Petition (“FAP”). 23 Dkt. 13. The FAP argues Petitioner’s original removal order was unconstitutional 24 and, therefore, Petitioner is “actually innocent” of all his subsequent convictions 25 for illegally reentry. Dkt. 13 at 6–12. As discussed below, the action is 26 DISMISSED without prejudice for lack of subject matter jurisdiction. 27 / / / 28 / / / Case 2:21-cv-07195-FLA-MAR Document 14 Filed 04/05/22 Page 2 of 7 Page ID #:180

1 II. 2 BACKGROUND 3 On February 21, 2017, a grand jury indicted Petitioner on one (1) count of 4 illegally reentering the United States after having previously been deported and 5 removed (8 U.S.C. § 1326(a) and (b)(2)), to which Petitioner subsequently pleaded 6 guilty. United States v. Hinkson, 744 F. App’x 656, 659 (11th Cir. 2018). The 7 United States District Court for the Northern District of Georgia sentenced 8 Petitioner to seventy-two (72) months’ imprisonment to run consecutively to 9 Petitioner’s twenty-four (24) month sentence for violating the terms of his 10 supervised release from his 2015 illegal reentry conviction. Id. at 660–61. The 11 United States Court of Appeals for the Eleventh Circuit affirmed the district 12 court’s judgment as to Petitioner’s convictions. Id. at 663. 13 On February 8, 2018, Petitioner filed a Petition for Writ of Coram Nobis in 14 the United States District Court for the Eastern District of Texas. Hinkson v. 15 United States, No. 1:18-CV-64, 2020 WL 8621515 (E.D. Tex. Nov. 23, 16 2020), report and recommendation adopted, No. 1:18-CV-64, 2021 WL 706719 17 (E.D. Tex. Feb. 22, 2021). On November 23, 2020, the magistrate judge issued a 18 Report and Recommendation recommending that the Petition for Writ of Coram 19 Nobis be denied, which the district court adopted on February 22, 2021. Id. at *3; 20 Hinkson v. United States, No. 1:18-CV-64, 2021 WL 706719 (E.D. Tex. Feb. 22, 21 2021). On March 16, 2021, Petitioner appealed the district court’s decision to the 22 United States Court of Appeals for the Fifth Circuit, where the appeal is now 23 pending. Hinkson v. USA, No. 21-40174 (5th Cir. 2021). 24 On August 25, 2021, Petitioner constructively filed the instant Petition for 25 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“section 2241”). Dkt. 1. On 26 October 5, 2021, the court issued an OSC why this action should not be dismissed 27 for lack of jurisdiction. Dkt. 6. On December 15, 2021, Petitioner filed a Motion 28 to Amend his Petition. Dkt. 9. Because Petitioner had not clearly responded to the 2 Case 2:21-cv-07195-FLA-MAR Document 14 Filed 04/05/22 Page 3 of 7 Page ID #:181

1 court’s OSC, the court again ordered Petitioner to show the court had jurisdiction 2 over the Petition. Dkt. 10. 3 On March 7, 2022, Petitioner filed a second Motion to Amend his Petition. 4 Dkt. 13. Upon review, Petitioner’s Motion appears to be a proposed First 5 Amended Petition (“FAP”). Id. However, the FAP does appear to respond to the 6 court’s OSC in a dedicated section addressing the court’s jurisdiction. Dkt. 13 at 7 2–6. As discussed below, Petitioner has still failed to show this court has 8 jurisdiction over his Petition. 9 III. 10 DISCUSSION 11 A. 28 U.S.C. § 2255 MOTION 12 1. Applicable law 13 A petitioner challenging “the manner, location, or conditions of a sentence’s 14 execution” must file a petition for writ of habeas corpus under section 2241 in the 15 custodial court. Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). On the 16 other hand, section 2255 “provides the exclusive procedural mechanism by which 17 a federal prisoner may test the legality of detention.” Lorentsen v. Hood, 223 F.3d 18 950, 953 (9th Cir. 2000). A petitioner challenging “the legality of his sentence” 19 must file a motion to vacate his sentence under section 2255 and “§ 2255 motions 20 must be heard in the sentencing court.” Hernandez v. Campbell, 204 F.3d 861, 21 864-65 (9th Cir. 2000). 22 There is, however, an exception to the general rule that a section 2255 23 challenge to the legality of detention must be filed in the sentencing court. Under 24 the “escape hatch” of section 2255, a federal prisoner may challenge the legality of 25 detention in the custodial court if, and only if, the remedy under section 2255 in the 26 sentencing court is “inadequate or ineffective to test the legality of his detention.” 27 28 U.S.C. § 2255(e); Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). A 28 prisoner may file under section 2255’s escape hatch in the custodial court “when 3 Case 2:21-cv-07195-FLA-MAR Document 14 Filed 04/05/22 Page 4 of 7 Page ID #:182

1 the prisoner: ‘(1) makes a claim of actual innocence, and (2) has not had an 2 unobstructed procedural shot at presenting that claim.’” Marrero v. Ives, 682 F.3d 3 1190, 1192 (9th Cir. 2012) (quoting Stephens, 464 F.3d at 898). 4 With respect to the first prong of section 2255’s escape hatch, an actual 5 innocence claim requires a petitioner to “demonstrate that, in light of all the 6 evidence, it is more likely than not that no reasonable juror would have convicted 7 him.” Stephens, 464 F.3d at 898 (citing Bousley v. United States, 523 U.S. 614 8 (1998)). “It is important to note ... that ‘actual innocence’ means factual 9 innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623 (citations 10 omitted). With respect to the second prong of section 2255’s escape hatch, 11 whether the petitioner has not had an “unobstructed procedural shot” at presenting 12 his actual innocence claim, the court must consider: “(1) whether the legal basis for 13 petitioner’s claim did not arise until after he had exhausted his direct appeal and 14 first § 2255 motion; and (2) whether the law changed in any way relevant to 15 petitioner’s claim after that first § 2255 motion.” Alaimalo v. United States, 645 16 F.3d 1042, 1047 (9th Cir. 2011) (internal quotation marks omitted). 17 2. Analysis 18 Here, Petitioner appears to acknowledge that he does not challenge “the 19 manner, location, or conditions of a sentence’s execution.” See Harrison, 519 F.3d 20 at 956. Rather, Petitioner appears to challenge the legality of his 2017 conviction 21 and sentence. See Dkt. 13 at 13–16. Thus, Petitioner cannot proceed in this court, 22 the custodial court, unless section 2255’s “escape hatch” provision applies. See 23 Lorentsen, 223 F.3d at 953. 24 First, it is not clear that Petitioner is alleging “actual innocence.” Petitioner 25 cites Aetna Life Ins. Co. v. Patrick Tremblay, 233 U.S. 185 (1912), to argue that 26 his original deportation was unconstitutional because it relied on the validity of a 27 foreign judgment—a 1982 Canadian conviction. Dkt. 13 at 2–6. Specifically, 28 Petitioner argues the immigration judge acted “without subject matter jurisdiction” 4 Case 2:21-cv-07195-FLA-MAR Document 14 Filed 04/05/22 Page 5 of 7 Page ID #:183

1 by deporting him in reliance on a foreign judgment and, thus, his initial removal 2 violated his Fifth Amendment right to due process. Id. at 6–12. Accordingly, 3 because his original removal was unconstitutional, Petitioner argues he is “actually 4 innocent” of all his subsequent convictions for illegally reentry. Id. at 9–12. 5 As an initial matter, the Ninth Circuit has already rejected a similar 6 argument —that a removal order based on a foreign conviction is unconstitutional 7 – in Brice v. Pickett, 515 F.2d 153, 153–54 (9th Cir. 1975), holding that the 8 petitioner’s “argument that deportation based on a foreign conviction for 9 possession of marijuana is unconstitutional [to be] meritless.” Furthermore, even if 10 Petitioner’s argument had merit, it is unclear whether such an argument is the type 11 of claim of “actual innocence” contemplated by section 2255’s escape hatch 12 provision. 13 Ultimately, the question of whether Petitioner presents a claim of “actual 14 innocence” is moot because he does not meet the second prong of section 2255’s 15 escape hatch. See Ivy v. Pontesso, 328 F.3d 1057, 1061 (9th Cir. 2003) (“To the 16 extent that Ivy may have a viable claim of innocence, something we do not decide, 17 he has not been denied an unobstructed procedural opportunity to present it. For 18 that reason, § 2255 does not provide an inadequate or ineffective remedy.”). 19 Petitioner admits he presented the same issue to both the United States District 20 Court for the Northern District of Georgia and the United States Court of Appeals 21 for the Fifth Circuit. Dkt. 13 at 6. Indeed, Petitioner’s appeal in the Fifth Circuit 22 remains pending. See Hinkson v. USA, No. 21-40174 (5th Cir. 2021). 23 Accordingly, Petitioner cannot show he lacks an unobstructed procedural 24 shot to raise his claim because “[h]e must never have had the opportunity to raise it 25 by motion” to qualify for the escape hatch. Ivy, 328 F.3d at 1060; see also Sperow 26 v. United States, No. CV 13-4244-DMG (JCG), 2013 WL 6910415, at *2 n.2 (C.D. 27 Cal. Dec. 31, 2013) (stating “because Petitioner’s § 2255 motion in Idaho District 28 5 Case P:21-cv-07195-FLA-MAR Document 14 Filed 04/05/22 Page6of7 Page ID #:184

1 | Court remains pending, there is no basis for the Court to find that Petitioner had no 2 | remedy under § 2255”). 3 Therefore, Petitioner has failed to qualify for section 2255’s escape hatch 4 | provision. 5 V. 6 ORDER 7 It is, therefore, ORDERED that Petitioner’s Motion is DENIED and the 8 | Petition is DISMISSED without prejudice. 10 , | Dated: April 5, 2022 xo) 12 FERNANDO AENLLE-ROCHA 13 United States District Judge 14 Presented by: S| Ka 3— 16 | MARGOA.ROCCONT. 17 | United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28

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