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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 CHANC E. COPELAND, ) Case No. 2:20-cv-03896-JVS-JC ) 12 Petitioner, ) ) ORDER (1) CONSTRUING 13 v. ) PETITION AS 28 U.S.C. ) § 2255 MOTION; AND 14 FELIPE MARTINEZ, JR., ) (2) DISMISSING PETITION AND ) ACTION WITHOUT PREJUDICE 15 Respondent. ) __________________________________ 16 17 I. SUMMARY 18 On April 29, 2020, petitioner Chanc E. Copeland, who is proceeding pro se 19 and is in federal custody in the Central District of California (“CDCA”), filed a 20 Petition for Writ of Habeas Corpus by a Person in Federal Custody (28 U.S.C. 21 § 2241) (“Petition”). Petitioner, who pleaded guilty to violating 18 U.S.C. 22 §§ 922(g)(1) & 924(a)(2) in the United States District Court for the Western 23 District of Missouri (“WDMO District Court”) in Case No. 4:12-cr-00146 24 (“WDMO Case”), challenges his conviction and sentence in the WDMO Case, 25 essentially claiming that his plea “was not knowingly and intelligently made,” and 26 that he did not possess the firearms in issue. (Petition at 1, 3). 27 Based on the record (including facts as to which this Court takes judicial 28 notice as detailed below) and the applicable law, this Court construes the Petition 1 to be a motion under 28 U.S.C.§ 2255 (“Section 2255”) to vacate, set aside, or 2 correct the sentence imposed in the WDMO Case, and dismisses the Petition and 3 this action without prejudice because the Court lacks jurisdiction. 4 II. BACKGROUND1 5 On May 22, 2012, an Indictment was filed in the WDMO Case charging 6 petitioner with violating 18 U.S.C. §§ 922(g)(1) & 924(a)(2) – felon in possession 7 of a firearm – on January 13, 2011 (count one). (WDMO Case Docket No. 1). On 8 September 13, 2018, pursuant to a binding plea agreement, petitioner pleaded 9 guilty to count one of the Indictment in the WDMO Case and to two charges in 10 another WDMO federal case – 4:14-cr-00321. (WDMO Case Docket Nos. 117, 11 118).2 The WDMO District Court sentenced petitioner to a total of 264 months 12 imprisonment. (WDMO Case Docket Nos. 117, 120, 123). The operative 13 Amended Judgment was entered on September 27, 2018. (WDMO Case Docket 14 No. 120). Petitioner did not appeal. 15 On April 22, 2019, petitioner filed a motion under Section 2255 to vacate, 16 set aside, or correct sentence by a person in federal custody (“WDMO 2255 17 Motion”) in the WDMO Case, raising claims similar to those asserted in the 18 Petition herein. (WDMO Case Docket No. 122).3 On August 28, 2019, the 19 WDMO District Court denied the WDMO 2255 Motion. Petitioner did not appeal. 20 /// 21 22 1The facts in this section are derived from the Petition and court records in the WDMO Case, of which this Court takes judicial notice. See Fed. R. Evid. 201; Harris v. County of 23 Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court may take judicial notice of court records). 24 2Although petitioner originally pleaded guilty in the WDMO Case on April 25, 2017, 25 such plea was ultimately not accepted by the WDMO District Court. (WDMO Case Docket Nos. 82, 109). 26 27 3The WDMO 2255 Motion was concurrently filed in the other federal case in which petitioner had pleaded guilty – 4:14-cr-00321 (Docket No. 69) – and under a new case number: 28 4:19-cv-00312 (Docket No. 1). 2 1 III. DISCUSSION 2 A federal inmate’s petition to challenge the legality of his conviction and 3 sentence must generally be filed under Section 2255 in the district in which he was 4 convicted and sentenced, whereas a petition to challenge the manner, location, or 5 conditions of the execution of the sentence must be brought under 28 U.S.C. 6 § 2241 (“Section 2241”) in the custodial district. See Hernandez v. Campbell, 204 7 F.3d 861, 864-65 (9th Cir. 2000) (per curiam). A federal prisoner may file a 8 habeas corpus petition pursuant to Section 2241 to contest the legality of his 9 conviction or sentence only where his remedy under Section 2255 is “inadequate or 10 ineffective to test the legality of his detention.” Marrero v. Ives, 682 F.3d 1190, 11 1192 (9th Cir. 2012) (citing and quoting Stephens v. Herrera, 464 F.3d 895, 897 12 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007)), cert. denied, 568 U.S. 1173 13 (2013). The “inadequate or ineffective” exception is narrow. Ivy v. Pontesso, 328 14 F.3d 1057, 1059 (9th Cir.) (as amended) (citation omitted), cert. denied, 540 U.S. 15 1051 (2003). Section 2255’s remedy is not “inadequate or ineffective” merely 16 because Section 2255’s gatekeeping provisions prevent the petitioner from filing a 17 second or successive petition. Id. (citation omitted); Lorentsen v. Hood, 223 F.3d 18 950, 953 (9th Cir. 2000); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999), 19 cert. denied, 528 U.S. 1178 (2000). 20 The present Petition falls squarely within the purview of Section 2255 21 because petitioner seeks to challenge the conviction and sentence in the WDMO 22 Case. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001) (“Merely labeling 23 a section 2255 motion as a section 2241 petition does not overcome the bar against 24 successive 2255 motions.”). Accordingly, it does not fall within this Court’s 25 Section 2241 jurisdiction unless petitioner can show that a Section 2255 motion is 26 inadequate or ineffective to test the legality of his detention. 27 Nothing in the record reflects that a Section 2255 motion is an inadequate or 28 ineffective remedy and petitioner has not so demonstrated. See Jackson v. Slade, 3 1 2004 WL 1083351, *2 (C.D. Cal. Apr. 6, 2004) (burden of coming forward with 2 evidence to show inadequacy or ineffectiveness of motion under section 2255 rests 3 squarely on petitioner) (citing Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.), 4 cert. denied, 534 U.S. 1001 (2001)). The fact that the WDMO District Court 5 denied the WDMO 2255 Motion does not so establish. If petitioner is prevented 6 from pursuing his instant claims in the WDMO District Court, it will be based on 7 the gatekeeping bar against the filing of second or successive petitions. The above 8 authorities establish that such outcome does not render a Section 2255 motion an 9 inadequate or ineffective remedy so as to permit petitioner to pursue such claims 10 via Section 2241 in the Central District of California. 11 To the extent petitioner denies that he possessed the firearms that are the 12 subject of the charge in the WDMO Case, the Petition can be read to assert that 13 petitioner is actually innocent. A petitioner my proceed under Section 2241 14 pursuant to the savings clause, or escape hatch, when the petitioner claims to be: 15 “(1) factually innocent of the crime for which he has been convicted; and, (2) has 16 never had an ‘unobstructed procedural shot’ at presenting this claim.” Ivy v. 17 Pontesso, 328 F.3d at 1060 (citation omitted). Failure to satisfy these requirements 18 is a jurisdictional defect. See Marrero v. Ives, 682 F.3d at 1194-95; Lorentsen v. 19 Hood, 223 F.3d at 954-56. A claim of factual innocence for purposes of the 20 savings clause under Section 2255 requires a petitioner to demonstrate that, “in 21 light of all the evidence, it is more likely than not that no reasonable juror would 22 have convicted him.” Stephens v. Herrera, 464 F.3d at 898 (quoting Bousley v. 23 United States, 523 U.S. 614, 623 (1998)). The petitioner bears the burden of 24 proving actual innocence by a preponderance of the evidence. See Lorentsen v. 25 Hood, 223 F.3d at 954. 26 Here, petitioner presented exactly the same argument regarding his asserted 27 lack of possession of the firearms in issue in the WDMO 2255 Motion and such 28 claim was squarely rejected by the WDMO District Court. In short, petitioner has 4 1 demonstrated neither that in light of all the evidence, it is more likely than not that 2 no reasonable juror would have convicted him, nor that he has never had an 3 unobstructed procedural shot at presenting this claim. Indeed, the binding plea 4 agreement which petitioner signed and which the WDMO District Court reviewed 5 with petitioner before he entered his guilty plea, includes petitioner’s admission 6 that on January 13, 2011, he was aware that there were firearms in the residence he 7 shared with his mother, that he had at least knowing and intentional constructive 8 possession of them on or before that date, that he had previously been convicted of 9 a felony and knew it was illegal for him to possess any firearms, and that the 10 firearms in issue were manufactured outside the state and therefore affected and 11 had traveled in interstate commerce prior to their recovery. (WDMO Case Docket 12 No. 116 at 3, 17 [plea agreement] & No. 123 at 3-8 [transcript]). 13 For the foregoing reasons, the Court construes the Petition to be a Section 14 2255 motion. This Court does not have jurisdiction to consider such a Section 15 2255 motion because petitioner was not convicted in this district. Accordingly, the 16 present application must either be dismissed or transferred to the WDMO District 17 Court where petitioner was convicted. As noted above, petitioner has previously 18 filed a Section 2255 motion in the WDMO District Court challenging the judgment 19 in issue. The present Petition/Section 2225 motion is thus successive and cannot 20 be entertained by the WDMO District Court unless and until authorized by the 21 Eighth Circuit. It would thus be futile to transfer this action to the WDMO District 22 Court for consideration as a Section 2255 motion. Therefore, the present Petition 23 should be dismissed without prejudice for lack of jurisdiction. Petitioner’s remedy 24 is to apply to the Eighth Circuit for leave to file a successive Section 2255 motion 25 in the WDMO District Court.4 26 27 4As this is not petitioner’s “first” Section 2255 motion, Castro v. United States, 540 U.S. 375, 383 (2003) (court cannot recharacterize pro se litigant’s motion as litigant’s first Section 28 (continued...) 5

ORDERS

2 IT IS THEREFORE ORDERED: 3 1. The Petition is construed as a motion arising under Section 2255. 4 2. The Petition/Section 2255 motion and this action are dismissed 5 without prejudice for lack of jurisdiction. 6 3. The Clerk is directed to enter Judgment accordingly. 7 IT IS SO ORDERED. 8 || DATED: April 30, 2020 : J (] (C4 ( JS / “4

10 / 1] HONORABLE JAMES V. SELNA 19 UNITED STATES DISTRICT JUDGE

13 14 15 16 17 18 19 20 21 22 23 24 25 “C...continued) 26 2255 motion unless court informs litigant of its intent to recharacterize, warns the litigant that 27 || the recharacterization will subject subsequent Section 2255 motions to the law’s “second or successive” restrictions, and provides the litigant with an opportunity to withdraw or to amend 28 || the filing) is not applicable.