1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY LEE FRANK, Case No. 1:21-CV-00568-HBK (HC) 12 Plaintiff, ORDER GRANTING RESPONDENT’S

MOTION TO DISMISS 1

13 v.

ORDER DENYING PETITIONER’S

14 WARDEN USP-ATWATER, REQUEST FOR APPOINTMENT OF

COUNSEL

15 Defendant.

ORDER DENYING PETITIONER’S

16 REQUEST FOR EVIDENTIARY HEARING 17 (Doc. No. 17) 18 19 20 21 22 Petitioner Jimmy Lee Frank (“Petitioner” or “Frank”), a federal prisoner is proceeding pro 23 se, on his petition for writ of habeas corpus filed under 28 U.S.C. § 2241 while incarcerated in 24 Atwater Penitentiary, located in Merced County, California and within the venue and jurisdiction 25 of this Court. (Doc. No. 1, “Petition”). Respondent filed a Motion to Dismiss the Petition in 26 response. (See generally Doc. No. 17, “Motion”). Petitioner filed a response in opposition. 27 1 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. 28 § 636(c)(1). (Doc. No. 41). 1 (Doc. No. 28). Petitioner subsequently filed a “motion pertaining to a new retroactive ruling.” 2 (Doc. No. 32). The Court liberally construed the motion as a supplemental response and 3 permitted Respondent to file a reply. (Doc. No. 36). For the reasons set forth more fully herein, 4 the Court grants Respondent’s Motion. 5 I. BACKGROUND 6 A. Procedural History 7 Frank, a federal prisoner, is serving a 55-year sentence for his 2011 plea-based 8 convictions for conspiracy to interfere with commerce by robbery (Count 1), interference with 9 commerce by robbery (Count 18), and two additional counts of using, carrying, possessing, and 10 brandishing a firearm during a crime of violence (Counts 17 and 19) entered by the U.S. District 11 Court for the Western District of Louisiana (“WDLA”). See United States v. Frank, 2:04-cr- 12 20115-RGJ-KK-3, Dct. Nos. 178, 179, 248 (W.D. La.).2 The Petition raises the following ground 13 for relief: based on the Supreme Court’s holding in Johnson v. United States, 559 U.S. 133 14 (2010), Petitioner’s Hobbs Act robbery crime (Count 18) did not constitute a predicate crime of 15 violence, and therefore may not be used to enhance his sentence under 18 U.S.C. § 924(c). (Doc. 16 No. 1). 17 Pursuant to 18 U.S.C. § 924(c)(1), Counts 17 and 19, use of a firearm during a crime of 18 violence, required a term of imprisonment of not less than seven (7) years for Count 17, and not 19 less than twenty-five (25) years for Count 19. (Doc. No. 33 at 53-54). On September 24, 2006, 20 Frank was sentenced to 60 months on Count 1, 10 years on Count 17, 10 years on Count 18, and 21 35 years on Count 19. (Doc. No. 33 at 13, 61-71). The sentences on Counts 1 and 18 were 22 concurrent, and the sentences on Counts 17 and 19 were consecutive, for a total term of 55 years. 23 (Doc. No. 33 at 13). The WDLA sentenced Frank “above the advisory guideline range,” due to 24 Petitioner’s extensive criminal history, the endangering of lives, “to reflect the seriousness of the 25 offense, [and] promote respect for the law and to provide just punishment.” (Doc. No. 70-71). 26

27 2 Pursuant to Local Rule 141, the Court granted Respondent’s request to seal the WDLA docket and court- of conviction documents. (Doc. No. 24). The Court will cite to the sealed documents filed by 28 Respondent, and available to Petitioner, available at Doc. No. 33. 1 Frank’s conviction and sentence was affirmed on direct appeal by the United States Court 2 of Appeals for the Fifth Circuit on March 26, 2007. (Doc. 33 at 73). In 2012, Frank’s filed a 3 motion to vacate his sentence under 28 U.S.C. § 2255, which was denied by the WDLA as 4 untimely. (Id. at 15-18). In August 2017, Frank sought relief via a § 2255 motion in the WDLA 5 based on the Supreme Court’s decision in Dean v. United States, 137 S.Ct. 1170 (2017). On 6 January 19, 2018, the WDLA denied the motion as an improper second and successive motion 7 within the meaning of § 2255(h), because it was filed without prior authorization from the Fifth 8 Circuit. (Doc. No. 33 at 72-77). In May 2018, after judgment had been entered, Frank filed a 9 letter motion requesting appointment of counsel based on the Supreme Court’s decision in 10 Sessions v. Dimaya, 138 S.Ct. 1204 (2017). (Id. at 21). The WDLA denied the motion noting 11 Frank had not yet raised any claims based on Sessions in a motion to vacate under § 2255. (Id.). 12 In April 2020, Frank filed a § 2255 motion seeking relief under the Supreme Court’s 13 decision in United States v. Davis, 139 S.Ct. 2319 (2019). (Doc. Nos. 17-1 at 5, 33 at 78-79). 14 The WDLA transferred the matter to the United States Fifth Circuit Court of Appeals to 15 determine whether Frank could proceed on his § 2255 motion, and the Fifth Circuit Court of 16 Appeals denied Frank authorization to seek relief through a successive § 2255 petition. (Doc. No. 17 33 at 79). Accordingly, in September 2020, the WDLA denied Frank’s motion for a successive § 18 2255 seeking relief under Davis. (Id.). 19 B. Current Petition 20 Under the guise of this instant § 2241 petition, Frank reasserts that his conviction and 21 sentence are “unconstitutionally vague,” based on similar grounds for relief that he raised in his 22 successive § 2255 petitions in the WDLA, except in this case Frank seeks relief under the 23 Supreme Court’s decision in Johnson v. United States, 559 U.S. 133 (2010). (Doc. No. 1). 24 Specifically, Frank claims that his Hobbs Act robbery crime (Count 18) did not constitute a 25 predicate crime of violence, and therefore may not be used to enhance his sentence pursuant to § 26 924(c). Respondent, in its Motion, argues the Court lacks jurisdiction to review the § 2241 27 petition and the “escape hatch” of 28 USC § 2255 does not apply. (See generally Doc. No. 17). 28 /// 1 II. APPLICABLE LAW AND ANALYSIS 2 Generally, a § 2241 petition is reserved for federal prisoners challenging “the manner, 3 location, or conditions of a sentence’s execution.” Harrison v. Ollison, 519 F.3d 952, 956 (9th 4 Cir. 2008). Federal prisoners seeking to challenge the legality of their confinement must do so 5 through a § 2255 motion. See Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). In limited 6 circumstances, federal prisoners may challenge the legality of their confinement through a § 2241 7 petition by utilizing the so-called “savings clause” or “escape hatch” provision of § 2255(e). Id. 8 at 1192. This portal permits a federal prisoner to challenge the legality of confinement if he can 9 establish that the remedy provided under § 2255 is “inadequate or ineffective to test the legality 10 of his detention.” 28 U.S.C. § 2255(e). To demonstrate a remedy is “inadequate or ineffective” a 11 petitioner must: (1) make a claim of actual innocence, and (2) show that he has not had an 12 “unobstructed procedural shot at presenting that claim.” Shepherd v. Unknown Party, Warden, 13 FCI Tucson, 54 F.4th 1075, 1076 (9th Cir. 2021). A prisoner cannot circumvent the limitations 14 imposed on successive petitions by restyling his petition as one under § 2241. Stephens v. 15 Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) 16 (per curiam) (petitioner attempted to circumvent AEDPA’s successive motion provisions by 17 bringing § 2255 claims in a § 2241 petition). 18 A. Actual Innocence 19 A factual claim of actual innocence requires a petitioner to “demonstrate that, in light of 20 all the evidence, it is more likely than not that no reasonable juror would have convicted him.” 21 Stephens, 464 F.3d at 898 (citing Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. 22 Ed. 2d 828 (1998)). Here, Frank does not dispute the validity of his underlying plea-based 23 convictions. Even if Frank did advance such a claim, his attempt would likely fail. Frank pled 24 guilty to his crimes of conviction. Therefore, any claim of actual innocence is fully inconsistent 25 with his plea of guilty, which is entitled to a strong presumption of truth. See Muth v. Fondren, 26 676 F.3d 815, 821-22 (9th Cir. 2012) (finding that petitioner was not entitled to application of the 27 § 2255 escape hatch where his claim of actual innocence was contradicted by his guilty plea); see 28 also Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“[T]he representations of the defendant [at 1 a plea hearing] . . . constitute a formidable barrier in any subsequent collateral proceedings. 2 Solemn declarations in open court carry a strong presumption of verity.”);United States v. Ross, 3 511 F.3d 1233, 1236 (9th Cir. 2008) (“Statements made by a defendant during a guilty plea 4 hearing carry a strong presumption of veracity in subsequent proceedings attacking the plea.”). 5 Frank premises his innocence argument on Johnson v. United States, 559 U.S. 133 6 (2010).3 However, Frank’s reliance on Johnson as support for his contention that his Hobbs Act 7 robbery crimes (Count 18) did not constitute a predicate “crime of violence” and therefore he is 8 actually innocent of violating § 924(c), is misplaced. (Doc. No. 1). Johnson does not address 9 whether a Hobbs Act robbery crime is a crime of violence under § 924(c); rather, Johnson held 10 that defendant’s prior battery conviction under Florida law could not be categorically 11 characterized as a “violent felony” under § 924(e)(1), because the Florida offense did not require 12 the use of physical force that was “violent force.” Johnson, 559 U.S. at 133. Violent physical 13 force, use or attempted, is not a required element to violate § 924(c). Rather, § 924(c) imposes an 14 additional penalty on a person who is convicted of using or carrying a firearm during or in 15 relation to a crime of violence. 18 U.S.C. § 924(c)(1). Thus, Johnson’s holding, which is 16 restricted to considering only the type of physical force required to violate § 924(e), has no 17 relevance to this Court’s consideration of whether Frank is actually innocent of violating § 924(c) 18 based on his Hobbs Act robbery offense.4 Frank fails to make a claim of actual innocence as 19 required by the escape hatch provision of § 2255(e). 20 B. Unobstructed Procedural Shot 21 In determining whether a petitioner has not had an “unobstructed procedural shot” at 22 raising his habeas claims, the court considers “(1) whether the legal basis for petitioner’s claim 23 ‘did not arise until after he had exhausted his direct appeal and first § 2255 motion;’ and (2) 24 3 In their motion to dismiss, Respondent incorrectly cites the 2015 Supreme Court case Johnson v. United 25 States, 135 S. Ct. 2551 (2015), in which the Supreme Court invalidated the residual clause of the ACCA, 18 USC § 924(e)(2)(B)(ii), deeming it unconstitutionally vague. See Johnson, 135 S. Ct. at 2557. 26 However, as discussed herein, Frank’s claim is premised solely on Johnson v. United States, 559 U.S. 133 (2010). 27 4 In further support of the undersigned’s conclusions, it is well-settled in the Ninth Circuit and “all of our sister circuits” that Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3). United States v. 28 Dominguez, 954 F.3d 1251, 1260-62 (9th Cir. 2020) (gathering cases). 1 whether the law changed ‘in any way relevant’ to petitioner’s claim after that first § 2255 2 motion.” Harrison, 519 F.3d at 960 (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 3 2003)). “If an intervening court decision after a prisoner’s direct appeal and first § 2255 motion 4 ‘effect[s] a material change in the applicable law[,]’ then the prisoner did not have an 5 unobstructed procedural shot to present his claim.” Allen v. Ives, 950 F.3d 1184, 1190 (9th Cir. 6 2020 (quoting Alaimalo v. United States, 645 F.3d 1042, 1047-48 (9th Cir. 2011)). To 7 demonstrate that a petitioner lacked an unobstructed procedural shot, “it is not enough that the 8 petitioner is presently barred from raising his claim . . . by motion under § 2255. He must never 9 have had the opportunity to raise it by motion.” Ivy, 328 F.3d at 1060. 10 Because Frank’s Johnson claim was available at the time he filed his first § 2255 motion, 11 he had an opportunity to advance the claim he raises in the instant petition. Thus, Frank fails to 12 show that he has not had an “unobstructed procedural shot” to present the claim raised in the 13 instant Petition. The Court finds Frank has failed to state a claim of actual innocence and has 14 failed to show that he has not had an unobstructed procedural shot to present his claim. Thus, 15 Frank’s claims are not viable for consideration under § 2241. 16 C. First Step Act 17 On November 1, 2021, several months after his response to Respondent’s motion to 18 dismiss, Frank filed a document entitled “Motion-Pertaining A New Retroactive Ruling § 19 924(c)(1)(A).” (Doc. No. 32). The Supreme Court has instructed the federal courts to liberally 20 construe the “inartful pleading[s]” of pro se litigants. Boag v. MacDougall, 454 U.S. 364, 365 21 (1982). Thus, the Court liberally construed Frank’s pleading as a supplemental response in 22 opposition, and respondent was allowed to file a reply. (Doc. Nos. 32, 36). In his supplemental 23 response, Frank asserted a new ground for relief; namely, that his “imposed enhanced sentence 24 should be vacated” based on the First Step Act’s elimination of “stacking” mandatory § 924(c) 25 sentences. See 18 U.S.C. § 3582(c)(1)(A) (allowing prisoners to directly petition a district court 26 for compassionate release). 27 This newly raised ground is not cognizable on federal habeas review. The First Step Act 28 amended portions of Section 924(c), which now provides that the mandatory minimum terms 1 applicable to subsequent convictions (the “stacking provision”) are only applicable after a “prior 2 conviction under this subsection has become final.” See First Step Act, Pub. L. No. 115-391, 3 Title IV, § 403, 132 Stat. 5221-22 (2018); 18 U.S.C. § 924(c)(1). However, to the extent Frank 4 seeks compassionate relief pursuant to The First Step Act, it is well-settled that such a motion 5 must be brought before the petitioner’s sentencing court—here the United States District Court 6 for the Western District of Louisiana. (See Doc. No. 1 at 1); 18 U.S.C. § 3582(c)(1)(A); Bolden 7 v. Ponce, No. 2:20-cv-03870-JFW-MAA, 2020 U.S. Dist. LEXIS 77249, at *2 (C.D. Cal. May 1, 8 2020) (explaining that “[o]nly the original sentencing court can entertain” requests for 9 compassionate release under 18 U.S.C. § 3582(c)(1)(A) and that a habeas petitioner “may not 10 short-circuit this requirement to file in the sentencing district by petitioning for such relief 11 pursuant to Section 2241 in the custodial district”); see also United States v. Ono, 72 F.3d 101, 12 102 (9th Cir. 1995) (explaining that a motion under § 3582(c) “is undoubtedly a step in the 13 criminal case” that “requires the [sentencing] court to reexamine the original sentence”). This 14 Court has no jurisdiction under Section 2241 to entertain Frank’s compassionate relief request. 15 However, nothing in this order prevents Frank from filing a request pursuant to 18 U.S.C. § 16 3582(c)(1)(A) in his court of conviction, the United States District Court for the Western District 17 of Louisiana. 18 D. Evidentiary Hearing 19 Frank incorporated a request for an evidentiary hearing “on the merits of the illegal 20 sentence” into his response. (Doc. No. 28 at 3). An evidentiary hearing in a habeas proceeding is 21 granted only under limited circumstances. See 28 U.S.C. § 2254(e)(2)(A)(ii). Rule 8(a) provides 22 that where a petition is not dismissed at a previous stage in the proceeding, the judge, after the 23 answer and transcripts and record of the state court proceedings are filed, shall, upon review of 24 those proceedings, determine whether an evidentiary hearing is required. The Court finds all 25 facts necessary to consider the Petition are developed in the record and finds an evidentiary 26 hearing is not necessary under the circumstances of this case. 27 E. Appointment of Counsel 28 Frank also incorporated a third request for appointment of counsel into his reply. (Doc. 1 | No. 32 at 4). The Court twice denied Petitioner’s previous requests for appointment of counsel 2 | on April 19, 2021 and August 4, 2021. (Doc. Nos. 8, 27). Petitioner’s renewed request provides 3 | no changed circumstances to warrant appointment of counsel. The Court denies Petitioner’s third 4 | request for the reasons previously set forth in its April 19, 2021 and August 4, 2021 Orders. 5 Accordingly, it is ORDERED: 6 1. Respondent’s motion to dismiss (Doc. No. 17) is GRANTED and the case is 7 dismissed. 8 2. Petitioner’s motion for evidentiary hearing is DENIED. 9 3. Petitioner’s motion for appointment of counsel is DENIED. 10 4. The Clerk of Court is directed to close this case. 11 Dated: _ Febrmary 6, 2022 Wile. Th. foareh Yack 13 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE

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