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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERTO GABRIEL MONTOYA, Case No. 2:23-cv-00723-SPG-AFM 12 Petitioner, ORDER TO SHOW CAUSE 13 v. 14

J. ENGLMAN, Warden,

15 Respondent. 16 17 18 BACKGROUND 19 In July 2019 Petitioner entered a plea agreement in the United States District 20 Court for the Western District of Oklahoma. (See Western District of Oklahoma Case 21 No. 19-CR-134-R (“Oklahoma Case”), ECF 46.)1 Pursuant to the agreement, 22 Petitioner pleaded guilty to one count of conspiracy to possess with intent to 23 distribute methamphetamine in violation of 21 U.S.C. § 846. According to the 24 agreement, Petitioner’s maximum sentence based upon that offense was 20 years 25 imprisonment. However, the Government agreed to request a three-level downward 26 adjustment of the Sentencing Guidelines. The Government also agreed to dismiss 27 1 The Court takes judicial notice of official court proceedings. See Fed. R. Evid. 201; Lee v. City 28 of Los Angeles, 250 F.3d 668, 688–689 (9th Cir. 2001). Case 2:23-cv-00723-SPG-AFM Document 5 Filed 03/15/23 Page 2 of 6 Page ID #:22

1 other charges. (Oklahoma Case, ECF 46.) On November 20, 2019, Petitioner was 2 sentenced to prison for a term of 144 months. (Oklahoma Case, ECF 60; ECF 1 at 2.) 3 In October 2021, Petitioner filed a motion in the sentencing court seeking a 4 sentence reduction under 18 U.S.C. § 3582(c)(1)(A) (Compassionate Release). 5 Petitioner argued that COVID-19 posed an extraordinary risk to him due to his age 6 (then 69) and health conditions. (Oklahoma Case, ECF 67.) The district court denied 7 the motion on December 15, 2021. (Oklahoma Case, ECF 74.) Petitioner appealed, 8 and the Tenth Circuit affirmed. United States v. Montoya, 2022 WL 3207615 (10th 9 Cir. Aug. 9, 2022). 10 On January 26, 2023, Petitioner, who is currently incarcerated at the Federal 11 Correctional Institution in Terminal Island (“FCI Terminal Island”), filed the present 12 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petition 13 challenges the sentence imposed by the Western District of Oklahoma. Specifically, 14 Petitioner alleges that he has been denied equal protection because he has not been 15 granted the same downward departure that other defendants pleading guilty have 16 received. According to Petitioner, some United States Attorney’s Offices are offering 17 defendants four-level downward departures based upon COVID-19 factors. 18 Petitioner seeks a “four point variance” of his sentence which would effectively grant 19 him immediate release from custody. (ECF 1 at 10-13.) 20 The petition also alleges that FCI Terminal Island is overcrowded; the Bureau 21 of Prisons has “conceded” that they cannot keep the prison population safe from 22 COVID-19; and the government’s failure to protect Petitioner from “widespread 23 outbreak of a serious contagious disease … constitutes deliberate indifference in 24 violation of the Eighth Amendment….” (ECF 1 at 11-12.) 2 25 26 2 The Court notes that on February 6, 2023 – shortly after he filed the present petition – Petitioner 27 filed a second motion for compassionate release under the First Step Act. The motion includes allegations regarding the United States Attorney’s Offices that are offering sentence reductions in 28 plea agreements based upon COVID-19. (Oklahoma Case, ECF 84.)

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1 DISCUSSION 2 A habeas petition brought under 28 U.S.C. § 2241 is subject to the same 3 screening requirements that apply to habeas petitions brought under 28 U.S.C. § 4 2254. See Habeas Rule 1(b) (providing that district courts may apply the Habeas 5 Rules to habeas petitions that are not brought under 28 U.S.C. § 2254). Accordingly, 6 a district court “must promptly examine” the petition and, “[i]f it plainly appears from 7 the petition and any attached exhibits that the petitioner is not entitled to relief,” the 8 “judge must dismiss the petition.” Habeas Rule 4; Mayle v. Felix, 545 U.S. 644, 656 9 (2005). For the following reasons, Petitioner is ordered to show cause why the 10 petition should not be dismissed for lack of jurisdiction. 11 Generally, a federal prisoner seeking to test the legality of his detention must 12 do so by filing a motion pursuant to 28 U.S.C. § 2255. Marrero v. Ives, 682 F.3d 13 1190, 1192 (9th Cir. 2012); Harrison v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008). 14 Challenges to the legality of a conviction or sentence must be brought in the 15 sentencing court, while challenges to the manner, location, or conditions of a 16 sentence’s execution must be brought pursuant to § 2241 in the custodial court. Muth 17 v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012); Hernandez v. Campbell, 204 F.3d 18 861, 864 (9th Cir. 2000). 19 There is a narrow exception allowing a federal prisoner to seek relief under 20 § 2241 if the prisoner’s remedy under § 2255 is “inadequate or ineffective to test the 21 legality of his detention.” 28 U.S.C. § 2255(e); see Harrison, 519 F.3d at 956. This 22 exception is referred to as the “savings clause” or the “escape hatch.” Hernandez, 23 204 F.3d at 864 n.2; see Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). This 24 narrow exception to § 2255 does not apply “merely because § 2255’s gatekeeping 25 provisions,” such as the statute of limitation or the limitation on successive petitions, 26 prevent the courts from considering a § 2255 motion. Ivy v. Pontesso, 328 F.3d 1057, 27 1059 (9th Cir. 2003). The Ninth Circuit has held that a petition meets the savings 28 clause criteria of § 2255 “when a petitioner (1) makes a claim of actual innocence,

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1 and (2) has not had an unobstructed procedural shot at presenting that claim.” 2 Harrison, 519 F.3d at 959 (quoting Stephens, 464 F.3d at 898). 3 A claim of actual innocence for purposes of the savings clause requires 4 petitioner to demonstrate that “in light of all the evidence, it is more likely than not 5 that no reasonable juror would have convicted him.” Stephens, 464 F.3d at 898 6 (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). Further, a claim of 7 actual innocence requires that the petitioner show factual innocence — mere legal 8 insufficiency of the evidence against him is not enough. Muth, 676 F.3d at 822 (citing 9 Bousley, 523 U.S. at 623). 10 The petition does not challenge “the manner, location, or conditions of a 11 sentence's execution.” See Harrison, 519 F.3d at 956. Rather, Petitioner alleges that 12 his sentence is unconstitutional because he did not receive a downward due to the 13 circumstances presented by COVID-19. Accordingly, Petitioner’s allegations 14 challenge the validity of his sentence and are properly raised in section 2255 motion 15 filed in the sentencing court. See Cortez-Felix v. Englman, 2023 WL 172013, at *2 16 (C.D. Cal. Jan. 12, 2023) (the petitioner’s claim that his “sentence violates due 17 process and equal protection because he did not receive a downward departure due 18 to COVID-19, even though the United States Attorney's Office has a policy in effect 19 that allows such a downward departure” must be raised in a section 2255 motion); 20 Martinez v. Warden FCI Hazelton, 2021 WL 4483406, at *7 (C.D. Cal. July 7, 2021) 21 (claim seeking sentence reduction and readjustment of the sentencing guidelines 22 applicable to sentence must be presented to the sentencing court in a section 2255 23 motion), report and recommendation adopted, 2021 WL 4478382 (C.D. Cal. Sept. 24 30, 2021); Mejia-Lopez v. United States, 2017 WL 3189935, at *1 (E.D. Cal. July 25 27, 2017) (“a prisoner who contends that he was entitled to a downward departure 26 under federal sentencing guidelines, challenges the legality of his current sentence” 27 and “[s]uch a request is properly filed under § 2255 in the sentencing court”). Thus, 28 Petitioner can proceed in this Court – that is, the “custodial” court – only if he

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1 demonstrates that the “escape hatch” provision applies. 2 Petitioner has not done so. Petitioner does not allege that he is actually 3 innocent of the crime to which he pleaded guilty, nor does he allege that he is 4 “actually innocent” of his sentence. Petitioner contends that his sentence violates due 5 process and equal protection because he did not receive a downward departure due 6 to COVID-19, even though some United States Attorney’s Offices have a policy 7 allowing such a downward departure to other defendants. This contention is not an 8 “actual innocence” claim for purposes of the § 2255(e) escape hatch. See, e.g., 9 Marrero, 682 F.3d at 1193, 1195 (holding that a purely legal argument that a 10 petitioner was wrongly classified as a career offender under the Sentencing 11 Guidelines is not cognizable as a claim of actual innocence under the escape hatch). 12 Thus, Petitioner has not alleged, let alone demonstrated, that he is actually innocent 13 as required to proceed under the § 2255(e) “escape hatch.” 14 Because Petitioner has not demonstrated that the savings clause applies to his 15 claim, he may not bring challenge his conviction in a § 2241 petition in this Court 16 but must raise it in a § 2255 motion.3 As mentioned, a § 2255 motion must be filed 17 before the sentencing court – that is, the United States District Court for the Western 18 District of Oklahoma – and this Court lacks jurisdiction over Petitioner’s claims. 19 Finally, Petitioner’s complaints about the conditions at FCI Terminal Island 20 are not cognizable in this proceeding. A habeas petition generally challenges only the 21 validity or duration of confinement rather than the conditions of confinement. See 22 Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en banc); Muhammad v. Close, 23 540 U.S. 749, 750 (2004). To the extent Petitioner seeks to raise a claim of deliberate 24 indifference to serious medical needs under the Eighth Amendment, his claim does 25 not challenge the execution of his sentence and is not cognizable under § 2241. 26 3 Petitioner previously filed a § 2255 motion, and a new motion may be barred as successive. 27 However, § 2255 is not inadequate merely because a new motion might be dismissed as successive. See Ivy, 328 F.3d at 1059. 28

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1 || Instead, Petitioner’s claim must be raised, if at all, by way of a civil rights complaint 2 || pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), or 3 || through some other form of civil action. See Martinez, 2021 WL 4483406, at *7 4 || (allegations of inadequate medical care and deliberate indifference were not 5 || cognizable under section 2241 and must be raised in a separate civil action). 6 ORDER 7 Petitioner is ordered to show cause on or before April 17, 2023 why this action 8 || should not be dismissed without prejudice for lack of jurisdiction. Specifically, 9 || Petitioner must set forth clearly the basis for his claim that he is actually innocent 10 || and otherwise demonstrate that he is entitled to rely upon the savings clause. 11 Petitioner is cautioned that failure to timely file a response to this order may 12 || result in dismissal of this action without prejudice for lack of jurisdiction, for failure 13 || to comply with court orders, or for failure to prosecute. See Fed. R. Civ. P. 41(b). 14 15 || DATED: 3/15/2023 (Wy Woe & . 16 -_ "ALEXANDER F. MacKINNON_ 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28