1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DANIEL RAY BENNETT, Case No. 2:19-cv-04983-FMO-MAA

12 Petitioner, ORDER ACCEPTING REPORT 13 v. AND RECOMMENDATION OF

THE UNITED STATES

14 L.J. MILUSNIC, Warden, MAGISTRATE JUDGE 15 Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other 19 records on file herein, and the Report and Recommendation of the United States 20 Magistrate Judge (“R&R,” ECF No. 11). 21 The Court also has reviewed Petitioner’s objections to the Report and 22 Recommendation. (“Objections,” ECF No. 12.) As required by Federal Rule of 23 Civil Procedure 72(b)(3), the Court has engaged in de novo review of the portions 24 of the Report and Recommendation to which Petitioner specifically has objected. 25 The Objections reiterate arguments made in Petitioner’s substantive response (see 26 generally ECF No. 9), and they lack merit for the reasons set forth in the R&R. 27 Below, the Court briefly addresses arguments raised for the first time in the 28 Objections. 1 Petitioner contends that “when the Jurisdiction and Substance Overlap, 2 plaintiff bear a lesser burden.” (Objections at 2 (errors preserved).) Petitioner cites 3 Bell v. Dublin, No. 17-CV-07346-LHK, 2019 U.S. Dist. LEXIS 40907, 2019 WL 4 1170780 (N.D. Cal. Mar. 13, 2019), for this proposition. In Bell, the district court 5 concluded that the petitioner need not meet her ultimate burden on an actual 6 innocence claim to invoke the district court’s jurisdiction. Id., 2019 U.S. Dist. 7 LEXIS 40907, at *30-31, 2019 WL 1170780, at *10. Instead, because there was “a 8 substantial overlap between substantive and jurisdictional analyses,” the court 9 applied a “lesser burden of proof.” Id., 2019 U.S. Dist. LEXIS 40907, at *31-34, 10 2019 WL 1170780, at *11. However, the court also reflected on Ninth Circuit 11 precedent concluding that a petitioner who fails to produce any evidence of actual 12 innocence does not invoke the jurisdiction of the federal courts. Id., 2019 U.S. 13 Dist. LEXIS 40907, at *29, 2019 WL 1170780, at *10 (citing Lorentsen v. Hood, 14 223 F.3d at 955-56 (9th Cir. 2000)). The court observed that “the Ninth Circuit 15 appears to require some factual showing in order to invoke jurisdiction over an 16 escape hatch petition.” Id., 2019 U.S. Dist. LEXIS 40907, at *33, 2019 WL 17 1170780, at *11. Here, as observed by the Magistrate Judge, Petitioner “does not 18 provide any claim or evidence that he is factually innocent of the crime for which 19 he was convicted.” (R&R at 8.) Accordingly, Bell is not analogous. 20 Petitioner argues that exhibits to the Petition make clear that the wiretap 21 authorization with which he takes umbrage is defective. (Objections at 3.) 22 Petitioner cites McQuiggin v. Perkins, 569 U.S. 383 (2013), and Bousley v. United 23 States, 523 U.S. 614 (1998), in support of this proposition. Petitioner does not 24 explain, nor can the Court discern, how these cases, which state general principles 25 of actual innocence theories in federal court, support his position. In Perkins, the 26 Supreme Court, recognizing a “miscarriage of justice exception” to certain 27 procedural issues in habeas petitions, held that habeas petitioners in rare 28 circumstances may avoid an untimeliness bar where the petitioner shows that “it is 1 more likely than not that no reasonable juror would have convicted him in the light 2 of the new evidence.” 569 U.S. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 3 (1995)). The Supreme Court indicated that untimeliness bears on the credibility of 4 evidence offered to show actual innocence. Id. at 401. In Bousley, the Supreme 5 Court held that a habeas petitioner could prosecute a claim that he was actually 6 innocent of the crime to which he pleaded guilty because, in light of a Supreme 7 Court decision interpreting the criminal statute for the crime, his plea was not 8 voluntary and intelligent because he was misinformed of the elements of the crime 9 during his plea colloquy. 523 U.S. at 618-19. The Court cautioned that, given his 10 guilty plea, the petitioner still had to clear “significant procedural hurdles” in order 11 to proceed. Id. at 621. One method the Court identified was to “establish that the 12 constitutional error in his plea colloquy ‘has probably resulted in the conviction of 13 one who is actually innocent.’” Id. at 623 (quoting Murray v. Carrier, 477 U.S. 14 478, 496 (1986)). Petitioner leaves unexplained how his assertion of a defect in a 15 wiretap authorization that could have been discovered years ago and presented in an 16 earlier Section 2255 motion is justified. (See R&R at 9-10.) Petitioner has not 17 shown how this stale evidence qualifies him for the narrow miscarriage of justice 18 exception. See Perkins, 569 U.S. at 401 (“[U]ntimeliness . . . does bear on the 19 credibility of evidence proffered to show actual innocence.”). 20 Notwithstanding, even assuming Petitioner could prove the wiretap 21 authorization was somehow defective, he still has not provided any evidence that he 22 is factually innocent of the underlying crime of conspiracy to commit murder for 23 hire, the crime to which he pleaded guilty. See Bousley, 523 U.S. at 623 (petitioner 24 must show “factual innocence, not mere legal insufficiency,” in asserting actual 25 innocence claim). In any event, this argument regarding the adequacy of the 26 authorization goes to the merits of the Petition, which this Court cannot address if it 27 lacks jurisdiction. See Marrero v. Ives, 682 F.3d 1190, 1194 (9th Cir. 2012) 28 (“[T]he district court must answer the threshold jurisdictional question whether a 1 petition is properly brought under § 2241 or is, instead, a disguised § 2255 motion, 2 before it can proceed to the merits of the claim.” (emphases added)). 3 Petitioner asks that this Court apply Alleyne v. United States, 570 U.S. 99 4 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), to find that Petitioner’s 5 sentence is unconstitutional because “the court reached another element to life not 6 the jury nor does it appear in the indictment.” (Objections at 3 (errors preserved).) 7 The Court observes that Petitioner’s plea agreement contains a stipulation to a 8 statement of facts demonstrating guilt of the offense for which he was convicted, 9 and a statement that life imprisonment was a possible sentence for the offense. Plea 10 Agreement at 2-3, United States v. Stanley, No. 2:96-cr-01140-MMM (C.D. Cal. 11 Sept. 15, 1997), ECF No. 507. Additionally, Petitioner waived his right to a jury 12 trial. Id. at 4. It is unclear what “essential ingredient of the offense” Petitioner 13 contends was left to the discretion of the trial court, especially given his waiver of 14 his right to a jury trial. Alleyne, 570 U.S. at 113; see also Apprendi, 530 U.S. at 15 490 (criminal defendants have a right to have a jury find “facts that increase the 16 prescribed range of penalties to which a criminal defendant is exposed” beyond a 17 reasonable doubt (citation and quotation marks omitted)). Regardless, the Court 18 declines to exercise its discretion to entertain this unsupported, unsubstantiated 19 claim, which Petitioner first (and only) raised in the Objections. See United States 20 v. Howell, 231 F.3d 615, 622 (9th Cir. 2000); see also, e.g., Blunk v. Ryan, 728 F. 21 App’x 736, 737 (9th Cir. 2018) (declining to consider “brand-new stand-alone 22 claim for relief that could have been raised long before the magistrate judge 23 considered his habeas petition” but instead was raised “for the first time in his 24 objections”). 25 The Court finds no defect of law, fact, or logic in the R&R. The Court 26 concurs with and accepts the findings, conclusions, and recommendations of the 27 United States Magistrate Judge, and overrules the Objections. 28 /// 1 IT IS THEREFORE ORDERED that (1) the Report and Recommendation of 2 the Magistrate Judge is accepted and adopted; and (2) Judgment shall be entered 3 denying the Petition and dismissing this action without prejudice to Petitioner 4 seeking permission from the United States Court of Appeals for the Ninth Circuit to 5 file a second or successive motion pursuant to 28 U.S.C. § 2255. 6 7 DATED: October 25, 2019 8 __________/s/______________________

FERNANDO M. OLGUIN

9

UNITED STATES DISTRICT JUDGE

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