1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KENNETH FLOYD PRUTTING, ) NO. CV 21-2283-PA(E) ) 12 Petitioner, ) ) 13 v. ) ORDER OF DISMISSAL ) 14 WARDEN FELIPE MARTINEZ, JR., ) ) 15 Respondent. ) ) 16 17 18 PROCEEDINGS 19 20 Petitioner, a federal prisoner, filed a “Petition Pursuant to 21 Title 28 USC § 2241 through Title 28 USC § 2255(d)’s Savings Clause, 22 etc.” on March 12, 2021. The Petition seeks to challenge Petitioner’s 23 sentence for possession of a firearm by a felon, imposed in United 24 States v. Prutting, United States District Court for the Middle 25 /// 26 /// 27 /// 28 /// 1 District of Florida case number 92-271-Cr-T-99(B).1 2 3 On May 10, 2021, Respondent filed “Respondent’s Motion to Dismiss 4 or Transfer Petition, etc.” (“Motion to Dismiss or Transfer”), 5 accompanied by exhibits.2 On July 19, 2021, Petitioner filed 6 “Petitioner’s Motion to Reply to the Government[’]s Response for 7 Motion to Dismiss, etc.,” which constitutes Petitioner’s reply to the 8 Motion to Dismiss or Transfer (“Reply”). 9 10 BACKGROUND 11 12 In 1993, in United States District Court for the Middle District 13 of Florida case number 92-271-Cr-T-99(B), a jury found Petitioner 14 guilty of being a felon in possession of a firearm in violation of 18 15 U.S.C. section 922(g)(1) (Petition, p. 3; Respondent’s Ex. 3 16 (Reporter’s Transcript) [“R.T.”] pp. 112-13). “The maximum punishment 17 for this offense is typically 10 years in prison.” United States v. 18 Stitt, 139 S. Ct. 399, 404 (2018); 18 U.S.C. § 924(a)(2). As 19 discussed below, however, Petitioner received a much longer sentence 20 by reason of his extensive criminal history. 21 /// 22 23 1 The Court takes judicial notice of the dockets of, and the documents filed in, Petitioner’s criminal and collateral 24 proceedings mentioned herein, available on the PACER database at https://pacer.uscourts.gov. See Porter v. Ollison, 620 F.3d 952, 25 954-55 n.1 (9th Cir. 2010) (federal court may take judicial notice of court proceedings). 26 2 The Motion to Dismiss or Transfer refers to a 27 “presentence investigative report” which is not included in 28 Respondent’s exhibits and is not to be found anywhere else in the 1 The evidence at trial, including Petitioner’s own admissions, 2 showed that Petitioner had suffered three prior felony robbery 3 convictions in Connecticut: (1) a conviction for a second degree 4 robbery committed in 1980, involving Petitioner’s taking of a 5 television and a radio while armed with a BB gun (which Petitioner had 6 put into a garbage bag “to make it look like it was a real gun”); 7 (2) a conviction for a first degree robbery committed in 1981, two 8 months after the previous robbery (this robbery involved the taking of 9 money from a girlfriend after Petitioner slapped her and spit on her); 10 and (3) a 1984 conviction for a 1983 first degree armed robbery of a 11 liquor store carried out by Petitioner’s confederates while Petitioner 12 allegedly remained in the car (Respondent’s Ex. 3 (R.T. 56-58, 61-62, 13 77-80, 84-85)). In a consolidated proceeding in 1982, Petitioner had 14 pled guilty to the 1980 robbery and the 1981 robbery (R.T. 78-79; see 15 Petition, p. 27; Reply, pp. 10-11 & Ex. 2). Petitioner had received a 16 suspended prison sentence of 2 1/2 to 5 years plus three years’ 17 probation for the 1980 robbery and a prison sentence of 30-31 months 18 for the 1981 robbery (Reply, Ex. 2). In 1984, Petitioner received a 19 prison sentence of 20 years for the 1983 robbery (R.T. 61). 20 21 Based on Petitioner’s three prior robbery convictions, the 22 District Court in the federal case determined that Petitioner was an 23 armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 24 U.S.C. section 924(e) (Respondent’s Ex. 6, p. 10). Under section 25 924(e), a person who violates § 922(g)(1) “and has three previous 26 convictions . . . for a violent felony . . . , committed on occasions 27 different from one another,” shall be imprisoned for a minimum of 28 fifteen years. 18 U.S.C. section 924(e)(1); see United States v. 1 Walker, 953 F.3d 577, 579 (9th Cir. 2020), cert. denied, 141 S. Ct. 2 1084 (2021) (citation omitted); see also Sessions v. Dimaya, 138 S. 3 Ct. 1204, 1211-12 (2018) (“ACCA prescribes a 15–year mandatory minimum 4 sentence if a person convicted of being a felon in possession of a 5 firearm has three prior convictions for a ‘violent felony.’”) 6 (citation omitted). 7 8 ACCA defines a “violent felony” as “any crime punishable by 9 imprisonment for a term exceeding one year . . . that — (i) has as an 10 element the use, attempted use, or threatened use of physical force 11 against the person of another [known as the force clause or the 12 elements clause]; or (ii) is burglary, arson, or extortion, involves 13 use of explosives [known as the enumerated felonies clause], or 14 otherwise involves conduct that presents a serious potential risk of 15 physical injury to another [known as the residual clause].” United 16 States v. Lawrence, 905 F.3d 653, 657 n.5 (9th Cir. 2018) (brackets in 17 original); 18 U.S.C. § 924(e)(2)(B). 18 19 The sentencing court did not expressly identify under which ACCA 20 clause the court deemed Petitioner’s robberies to be violent 21 felonies.3 Petitioner received a total ACCA sentence of 264 months, 22 to run consecutive to a Connecticut sentence on an escape conviction 23 (Petition, p. 3; Respondent’s Lodgment 1, Respondent’s Ex. 4; 24 25 3 See Prutting v. United States, 723 Fed. App’x 886, 888 & n.2 (11th Cir. 2018), cert. denied, 139 S. Ct. 788 (2019) (“The 26 Presentence Investigation Report (‘PSI’) does not state which clause of the ACCA supported an enhancement. In a sentencing 27 hearing on September 7, 1993, the District Court stated that ‘the 28 Defendant is an armed career criminal.’ It said no more on the 1 Respondent’s Ex. 6, pp. 12-15). 2 3 Petitioner appealed, arguing that the trial court had abused its 4 discretion by denying a continuance and also had erred by admitting 5 certain evidence concerning Petitioner’s prior convictions. See 6 United States v. Prutting, United States Court of Appeals for the 7 Eleventh Circuit case number 93-2692, “Initial Brief of Appellant, 8 etc.,” 1993 WL 13630743 (filed Dec. 10, 1993). The United States 9 Court of Appeals for the Eleventh Circuit affirmed in an unpublished 10 disposition. See United States v. Prutting, 24 F.3d 254 (11th Cir. 11 1994) (table). 12 13 On June 21, 2016, Petitioner filed a “Motion Under 28 U.S.C. § 14 2255 to Vacate, Set Aside or Correct Sentence, etc.” in United States 15 v. Prutting, United States District Court for the Middle District of 16 Florida case number 8:16-CV-01673. In this section 2255 motion, 17 Petitioner argued that his sentence was unlawful under Johnson v. 18 United States, 576 U.S. 591 (2015) (“Johnson”). Johnson had held 19 unconstitutional ACCA’s residual clause (18 U.S.C. section 20 924(e)(2)(B)(ii)). On April 18, 2016, the United States Supreme Court 21 held that Johnson had announced a substantive rule of law which 22 applied retroactively on collateral review. Welch v. United States, 23 136 S. Ct. 1257 (2016). 24 25 On November 2, 2016, the District Court denied Petitioner’s 26 section 2255 motion, ruling: (1) the motion was untimely; and (2) the 27 Johnson argument failed on the merits because Petitioner’s robbery 28 convictions were violent felonies under ACCA’s elements clause (see 1 Order filed November 2, 2016 in Prutting v. United States, United 2 States District Court for the Middle District of Florida case number 3 8:16-cv-1673-T-24TGW). On February 1, 2018, the United States Court 4 of Appeals for the Eleventh Circuit affirmed. See Prutting v. United 5 States, 723 Fed. App’x 886 (11th Cir. 2018), cert. denied, 139 S. Ct. 6 788 (2019). On January 7, 2019, the United States Supreme Court 7 denied certiorari. Prutting v. United States, 139 S. Ct. 788 (2019). 8 9 On October 8, 2020, Petitioner filed an “Application for Leave to 10 File a Second or Successive Habeas Corpus Petition, etc.” in the 11 United States Court of Appeals for the Eleventh Circuit, in In re 12 Prutting, case number 20-13780. Petitioner sought to challenge his 13 sentence on the ground that the prosecution purportedly failed to 14 prove that Petitioner knew both that he possessed a firearm and that 15 he belonged within the relevant category of persons who cannot 16 lawfully possess firearms, as allegedly required by Rehaif v. United 17 States, 139 S. Ct. 2191 (2019) (“Rehaif”) (see “Motion Requesting the 18 Court to Excuse the Delay, etc.,” filed October 8, 2020 in United 19 States Court of Appeals for the Eleventh Circuit case number 20- 20 13780). Rehaif held that 18 U.S.C. section 924(a)(2), which 21 authorizes imprisonment for up to ten years if the defendant 22 “knowingly” violates section 922(g), requires that the defendant know 23 not only that he or she possessed a firearm, but also that he or she 24 had the relevant status while possessing the firearm. Rehaif, 139 S. 25 Ct. at 2194, 2200. Thus, an individual charged with possession of a 26 firearm by a felon must “know[] of his status as a person barred from 27 possessing a firearm.” Id. at 2195. On October 16, 2020, the United 28 States Court of Appeals for the Eleventh Circuit denied Petitioner’s 1 application to file a second or successive section 2255 motion. 2 3 PETITIONER’S CONTENTIONS 4 5 Petitioner contends: 6 7 1. Petitioner assertedly is actually innocent of the section 8 922(g)(1) offense because: (a) the jury instructions allegedly were 9 invalid under Rehaif; (b) the asserted “misinformation” concerning the 10 elements of 922(g)(1) allegedly violated Petitioner’s purported 11 “automomy interest” under the Fifth and Sixth Amendments to make “an 12 informed choice” concerning “how to protect his liberty interest”; and 13 (c) Petitioner supposedly had not possessed a firearm (see Petition, 14 pp. 4, 8; Reply, pp. 6-9) (Ground One); and 15 16 2. Petitioner assertedly is actually innocent of the ACCA 17 enhancement because: (1) “two of his priors [i.e., the two robbery 18 convictions which were consolidated for sentencing] were consolidated 19 and should have only been counted as one” for purposes of section 20 924(e)4; and (2) the second degree robbery allegedly did not qualify 21 22 4 But see United States v. Maxey, 989 F.2d 303, 306 (9th 23 Cir. 1993) (for purposes of ACCA sentencing, “offenses that are temporally distinct constitute separate predicate offenses, even 24 if committed within hours of each other, similar in nature, and consolidated for trial or sentencing.”) (citation omitted); see 25 also United States v. Powell, 441 Fed. App’x 502, 507 (9th Cir. 2011) (two convictions for burglaries which “took place on the 26 same day, were charged in the same indictment, and resulted in concurrent sentences” “‘arose from two separate and distinct 27 criminal episodes’” because “the burglaries occurred at two 28 separate locations, at different times, and were perpetrated 1 as a “crime of violence” under Mathis v. United States, 136 S. Ct. 2 2243 (2016) (“Mathis”) (holding that a prior conviction does not 3 qualify as a predicate violent felony under the ACCA if the statute of 4 conviction enumerates multiple, alternative factual means of 5 satisfying a single element), and Descamps v. United States, 570 U.S. 6 254 (2013) (“Descamps”) (holding that when the prior conviction 7 statute contains a single, indivisible set of elements, the sentencing 8 court may not look beyond those elements in deciding whether to apply 9 the ACCA sentence enhancement) (see Petition, pp. 4, 27-28) (Ground 10 Two). 11 12 DISCUSSION 13 14 A federal prisoner who contends that his or her conviction or 15 sentence is subject to collateral attack “may move the court which 16 imposed the sentence to vacate, set aside or correct the sentence.” 17 28 U.S.C. § 2255. A prisoner generally may not substitute a habeas 18 petition under 28 U.S.C. section 2241 for a section 2255 motion. See 19 28 U.S.C. § 2255; see also Stephens v. Herrera, 464 F.3d 895, 897-99 20 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007); Hernandez v. 21 Campbell, 204 F.3d 861, 864 (9th Cir. 2000). 22 23 An application for a writ of habeas corpus in behalf of a 24 prisoner who is authorized to apply for relief by motion 25 pursuant to this section, shall not be entertained if it 26 appears that the applicant has failed to apply for relief, 27 by motion, to the court which sentenced him, or that such 28 court has denied him relief, unless it also appears that the 1 remedy by motion is inadequate or ineffective to test the 2 legality of his detention. 3 4 28 U.S.C. § 2255(e); see Stephens v. Herrera, 464 F.3d at 897-99; 5 Hernandez v. Campbell, 204 F.3d at 864. Here, Petitioner has applied 6 for, and has been denied, section 2255 relief in the sentencing court. 7 8 “Under the savings clause of § 2255, however, a federal prisoner 9 may file a habeas corpus petition pursuant to § 2241 to contest the 10 legality of a sentence where his remedy under section 2255 is 11 ‘inadequate or ineffective to test the legality of his detention.’” 12 Hernandez v. Campbell, 204 F.3d at 864-65; see also Stephens v. 13 Herrera, 464 F.3d at 897. This “savings clause” exception to section 14 2255 exclusivity is a “narrow” exception. Ivy v. Pontesso, 328 F.3d 15 1057, 1059-60 (9th Cir.), cert. denied, 540 U.S. 1051 (2003); United 16 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). “The general rule 17 in this circuit is that the ban on unauthorized second or successive 18 petitions does not per se make § 2255 inadequate or ineffective.” 19 Stephens v. Herrera, 464 F.3d at 898 (citations, quotations and 20 brackets omitted). Mere lack of success in the sentencing court does 21 not render the section 2255 remedy “inadequate or ineffective.” 22 Boyden v. United States, 463 F.2d 229, 230 (9th Cir. 1972), cert. 23 denied, 410 U.S. 912 (1973); see Tripati v. Henman, 843 F.2d 1160, 24 1163 (9th Cir.), cert. denied, 488 U.S. 982 (1988) (“the district 25 court’s previous denial of relief on the merits is not alone 26 sufficient to show that the section 2255 remedy is inadequate”). If 27 the rule were otherwise, every disappointed prisoner/movant 28 incarcerated in a district different from the sentencing district 1 could pursue a repetitive section 2241 petition in the district of 2 incarceration. Petitioner bears the burden of proving the inadequacy 3 or ineffectiveness of the section 2255 remedy. See Redfield v. United 4 States, 315 F.2d 76, 83 (9th Cir. 1963); Gasaway v. Jusino, 2021 WL 5 3042275, at *3 (C.D. Cal. June 1, 2021), adopted, 2021 WL 3037391 6 (C.D. Cal. July 16, 2021). 7 8 A federal prisoner may file a section 2241 petition under the 9 savings clause only if the prisoner “(1) makes a claim of actual 10 innocence, and (2) has not had an unobstructed procedural shot at 11 presenting that claim.” Marrero v. Ives, 682 F.3d 1190, 1192 (9th 12 Cir. 2012), cert. denied, 568 U.S. 1173 (2013) (citation and internal 13 quotations omitted); accord Pavulak v. Blanckensee, F.4th , 14 2021 WL 3379040, at *2 (9th Cir. Aug. 4, 2021). 15 16 I. Unobstructed Procedural Shot 17 18 In analyzing whether a petitioner previously had an “unobstructed 19 procedural shot,” the Court considers: “(1) whether the legal basis 20 for petitioner’s claim did not arise until after he had exhausted his 21 direct appeal and first § 2255 motion; and (2) whether the law changed 22 in any way relevant to petitioner’s claim after that first § 2255 23 motion.” Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir.), cert. 24 denied, 555 U.S. 911 (2008) (internal quotations omitted). 25 /// 26 /// 27 A. Ground One (Rehaif Claim) 28 1 The Supreme Court issued its Rehaif decision on June 21, 2019, 2 approximately two and a half years after the sentencing court denied 3 Petitioner’s first section 2555 petition (on November 2, 2016), over a 4 year after the Eleventh Circuit affirmed that decision (on February 1, 5 2018), and over five months after the Supreme Court denied certiorari 6 (on January 7, 2019). As indicated above, Petitioner unsuccessfully 7 raised his Rehaif claim in his application to file a second or 8 successive section 2255 motion filed in the Eleventh Circuit. 9 10 “Second or successive section 2255 motions are subject to the 11 gatekeeping procedures ‘provided in [28 U.S.C. section] 2244.’” Ezell 12 v. United States, 778 F.3d 762, 764 (9th Cir.), cert. denied, 577 U.S. 13 916 (2015). Section 2244(b)(3)(A) requires that a petitioner seeking 14 to file a “second or successive” habeas petition first obtain 15 authorization from the Court of Appeals. Hughes v. United States, 770 16 F.3d 814, 817 (9th Cir. 2014); 28 U.S.C. § 2244(b)(3)(C). “[A] 17 federal prisoner may not file a second or successive § 2255 petition 18 unless he or she makes a prima facie showing to the appropriate court 19 of appeals that the petition is based on: (1) ‘a new rule,’ (2) ‘of 20 constitutional law,’ (3) ‘made retroactive to cases on collateral 21 review by the Supreme Court,’ (4) ‘that was previously unavailable.’” 22 Ezell v. United States, 778 F.3d at 765 (citations and footnote 23 /// 24 /// 25 /// 26 /// 27 28 1 omitted); 28 U.S.C. § 2255(h)(2); see 28 U.S.C. § 2244(b)(2)(A).5 2 3 The Eleventh Circuit denied Petitioner’s application for leave to 4 file a second or successive section 2255 motion based on its ruling in 5 In re Wright, 942 F.3d 1063 (11th Cir. 2019). Therein, the Eleventh 6 Circuit ruled that Rehaif “did not announce a new rule of 7 constitutional law but rather clarified the requirements of 18 U.S.C. 8 §§ 922(g) and 924(a)(2).” See In re Wright, 942 F.3d at 1065 9 (citation omitted); accord Tate v. United States, 982 F.3d 1226 (9th 10 Cir. 2020); Mata v. United States, 969 F.3d 91 (2d Cir. 2020); In re 11 Sampson, 954 F.3d 159 (3d Cir. 2020). In re Wright further held that 12 the Supreme Court had not made Rehaif retroactive on collateral 13 review. Id. at 1065. 14 15 However, several courts have held that Rehaif’s statutory holding 16 is retroactive on collateral review in an initial section 2255 motion. 17 See, e.g., Baker v. United States, 848 Fed. App’x 188, 189–90 (6th 18 Cir. 2021); Kelley v. United States, 2021 WL 2373896, at *2 (6th Cir. 19 Feb. 5, 2021), pet. for cert. filed June 9, 2021 (No. 20-8267); United 20 States v. Harris, 2021 WL 3408506, at *2-4 (D. Mont. Aug. 4, 2021). 21 Here, because Petitioner’s Rehaif statutory claim did not become 22 available until well after the date the Supreme Court denied 23 24 5 A court of appeals also may grant an application to file a second or successive section 2255 motion where the motion 25 is based on “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to 26 establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense.” 27 28 U.S.C. § 2255(h)(1). In his application to the Eleventh 28 Circuit, Petitioner did not assert any claim based on any newly 1 certiorari with respect to Petitioner’s section 2255 motion, and 2 because that statutory claim does not satisfy the criteria for filing 3 a second or successive section 2255 motion, Petitioner has never had 4 an “unobstructed procedural shot” at presenting his statutory Rehaif 5 claim.6 See Stephens v. Herrera, 464 F.3d at 898 (where movant’s 6 statutory claim did not satisfy requirements for second or successive 7 motions, movant “has not had (and, indeed, will never get) an 8 opportunity to present his [statutory] claim in a § 2255 motion”; 9 hence, movant had not had an “unobstructed procedural shot” at 10 presenting claim). Even so, for the reasons explained infra, 11 Petitioner has failed to show the requisite “actual innocence” with 12 respect to his statutory Rehaif claim and therefore the savings clause 13 does not apply to this claim. 14 15 B. Ground Two (ACCA Claim) 16 17 Petitioner could have raised on appeal his claim that the 18 sentencing court should have consolidated two of his prior robbery 19 convictions. Indeed, Petitioner’s counsel made this precise argument 20 at sentencing, and the sentencing court rejected the argument. The 21 court commented that the two offenses were “different crimes that were 22 committed on different dates with separate sentences that are [sic] 23 declared as such” (Respondent’s Ex. 6, pp. 6-9). The court also 24 25 6 Indeed, the concurrence in the Eleventh Circuit decision denying Petitioner’s application to file a second or 26 successive section 2255 motion suggested that, because Petitioner’s Rehaif claim was statutory only, Petitioner could 27 bring a section 2241 petition asserting that claim. See In re 28 Prutting, United States Court of Appeals for the Eleventh Circuit 1 commented that the fact both sentences were imposed on the same day 2 was not “of any consequence.” (Id.). Petitioner also could have 3 raised this claim in his first section 2255 motion, although he 4 possibly would have had to surmount a procedural default bar.7 5 Petitioner does not allege, and the record does not show, that the 6 legal basis for this claim post-dated the decision on Petitioner’s 7 first section 2255 motion, or that the law changed in any relevant way 8 after the conclusion of Petitioner’s section 2255 proceeding. 9 Therefore, Petitioner did not lack an “unobstructed procedural shot” 10 at presenting this claim. 11 12 To the extent Petitioner claims that his sentence violated Mathis 13 and Descamps, Petitioner also has failed to show he lacked an 14 “unobstructed procedural shot” at asserting such claim(s). The United 15 States Supreme Court decided Descamps on June 20, 2013, years before 16 Petitioner filed his section 2255 motion in the sentencing court. The 17 Supreme Court decided Mathis on June 23, 2016, only two days after 18 Petitioner filed his section 2255 motion. The sentencing court did 19 not rule on the section 2255 motion until November 2, 2016, months 20 after Mathis. Petitioner could have sought to amend his section 2255 21 motion expressly to assert his Mathis/Descamps claim. Indeed, it 22 appears that the Mathis/Descamps claim actually was at issue in the 23 section 2255 proceeding. The Government cited Mathis in its 24 opposition to Petitioner’s section 2255 motion (see “United States’ 25 26 7 “A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and 27 prejudice or actual innocence in response to the default.” 28 United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003), 1 Response in Opposition to Prutting’s Motion to Vacate, etc.,” filed 2 September 12, 2016 in Prutting v. United States, United States 3 District Court for the Middle District of Florida case number 8:16-cv- 4 01673, at pp. 14-15). The sentencing court cited Descamps in denying 5 the section 2255 motion (see “Order” filed November 2, 2016 in 6 Prutting v. United States, United States District Court for the Middle 7 District of Florida case number 8:16-cv-01673, at p. 3). Petitioner 8 has failed to show that the legal basis for his Mathis/Decamps claim 9 “did not arise until after he had exhausted his direct appeal and 10 first § 2255 motion.” See Harrison v. Ollison, 519 F.3d at 960. 11 Thus, Petitioner has failed to show he lacked an “unobstructed 12 procedural shot” at presenting this claim. See Pavulak v. 13 Blanckensee, F.4th , 2021 WL 3379040, at *2 (9th Cir. 2021) 14 (petitioner had “unobstructed procedural shot” at Mathis claim, where 15 Mathis “came down before he had exhausted his original § 2255 16 motion”); see generally Harrison v. Ollison, 519 F.3d at 960. 17 18 To the extent Petitioner also claims that his sentence violated 19 Johnson v. United States (see Reply, pp. 10-11), as indicated above, 20 Petitioner unsuccessfully raised this claim in his section 2255 21 motion. Petitioner obviously had an “unobstructed procedural shot” at 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 presenting the Johnson claim, and Petitioner previously took his 2 shot.8 3 4 In sum, Petitioner has failed to show that he lacked an 5 “unobstructed procedural shot” at presenting his challenges to his 6 ACCA sentence. In light of this conclusion, the Court need not, and 7 does not, address the issue of whether Petitioner has shown “actual 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 15 16 8 Petitioner’s argument that he had no “unobstructed procedural shot” at presenting his Johnson claim because the 17 Florida court denied Petitioner’s section 2255 motion as untimely as well as on the merits is wholly unpersuasive. See Ivy v. 18 Pontesso, 328 F.3d 1057, 1060 (9th Cir.), cert. denied, 540 U.S. 1051 (2003) (“it is not enough that the petitioner is presently 19 barred from raising his claim . . . by motion under § 2255. He must never have had the opportunity to raise it by motion.”); see 20 also Sanchez v. Matevousian, 677 Fed. App’x 451 (9th Cir. 2017), 21 cert. denied, 138 S. Ct. 716 (2018) (“Sanchez cannot establish that he has not had an ‘unobstructed procedural shot’ at 22 presenting his claim, because he could have filed a timely section 2255 motion in the sentencing court”); Garcia-Guia v. 23 Jusin, 2020 WL 6370167, at *5 (C.D. Cal. Sept. 10, 2020), adopted, 2020 WL 6363891 (C.D. Cal. Oct. 26, 2020) (“the fact 24 that the district court denied Petitioner’s § 2255 motion on timeliness grounds does not mean that § 2255 is an inadequate or 25 ineffective remedy.”); James v. Warden, 2020 WL 710158, at *1 (C.D. Cal. Jan. 14, 2020) (“just because [movant’s] § 2255 motion 26 was denied as untimely does not mean that he lacked an ‘unobstructed procedural shot’ to pursue his claim”) (citation 27 omitted). Moreover, the Florida District Court rejected 28 Petitioner’s claim on the merits as well as on the basis of 1 innocence” of his ACCA sentence.9 2 3 II. Alleged Actual Innocence of Section 922(g) Conviction (Including 4 Petitioner’s Rehaif Claim) 5 6 “To establish actual innocence, petitioner must demonstrate that, 7 in light of all the evidence, it is more likely than not that no 8 reasonable juror would have convicted him.” Bousley v. United States, 9 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-28 10 (1995) (internal quotations omitted). “‘Actual innocence’ means 11 factual innocence, not mere legal insufficiency.” Marrero v. Ives, 12 682 F.3d 1190, 1193 (9th Cir. 2012), cert. denied, 568 U.S. 1173 13 (2013) (quoting Bousley v. United States, 523 U.S. at 623) (internal 14 brackets omitted). “Petitioner bears the burden of proof on this 15 issue by a preponderance of the evidence, and he must show not just 16 that the evidence against him was weak, but that it was so weak that 17 ‘no reasonable juror’ would have convicted him.” Lorentsen v. Hood, 18 223 F.3d 950, 954 (9th Cir. 2000). 19 20 Petitioner contends he is “actually innocent” of the section 21 922(g)(1) offense because Rehaif allegedly invalidated the jury 22 instructions used at Petitioner’s trial (Petition, pp. 7-10). 23 Petitioner also asserts a purported violation of an “autonomy 24 9 Additionally, to the extent Petitioner contends that 25 the Connecticut robbery convictions do not qualify as violent felony convictions under ACCA, the Court observes that the United 26 States Court of Appeals for the Second Circuit has held otherwise. See Estremera v. United States, 944 F.3d 452, 455 (2d 27 Cir. 2019) (Connecticut convictions for first and second degree 28 robbery qualify as prior felonies under 18 U.S.C. § 1 interest,” on the ground that the indictment assertedly did not allege 2 the Rehaif element of Petitioner’s knowledge of Petitioner’s felon 3 status at the time of the instant offense, thereby depriving 4 Petitioner of the ability to decide whether or not to plead guilty 5 (Petition, pp. 25-26). In the Reply, Petitioner also argues that he 6 is “actually innocent” of the underlying conviction because he 7 supposedly had not possessed the firearm (Reply, pp. 8-9). 8 9 Rehaif held that “in a prosecution under 18 U.S.C. § 922(g) and § 10 924(a)(2), the Government must prove both that the defendant knew he 11 possessed a firearm and that he knew he belonged to the relevant 12 category of persons barred from possessing a firearm.” Rehaif, 139 S. 13 Ct. at 2200. The Government need not prove, however, that the 14 defendant knew the defendant’s status prohibited him or her from 15 possessing a firearm. United States v. Singh, 979 F.3d 697, 727 (9th 16 Cir. 2020), cert. denied, U.S. , 2021 WL 2044557 (U.S. May 24, 17 2021). 18 19 “[T]he mere fact of an improper instruction is not sufficient to 20 meet the test for actual innocence.” Stephens v. Herrera, 464 F.3d at 21 899. Petitioner does not appear to contend that, at the time 22 Petitioner committed the instant offense, he was unaware that he had 23 suffered the three prior robbery convictions. Petitioner admitted at 24 trial having suffered the three prior felony robbery convictions (R.T. 25 76-80, 84-85). Petitioner acknowledged at trial that he was a 26 convicted felon who had been in prison (R.T. 76, 80). Petitioner also 27 expressly testified that, at the time of the instant alleged offense, 28 Petitioner well knew of his three prior felonies (R.T. 80, 82). In 1 fact, Petitioner exploited his admitted knowledge of the prior 2 felonies to attempt to persuade the jury that such knowledge made it 3 unlikely he would have possessed a gun at the time in question: 4 5 Here today they are trying to tell you they took the gun off 6 me. They did not take the gun off me. I dealt with the 7 law; why would I carry the gun when I know they are going to 8 give me life for the gun because I have got three felonies? 9 Everybody knows this. I’m not going to run out of the house 10 with the gun in my hand because I know there’s either two 11 options: They’re either going to shoot me there or give me 12 life for it, you know. 13 14 . . . 15 16 [¶] . . . I’m not that idiotic. I know very well that three 17 felonies and you get possession of a weapon after that, 18 whether you do a crime or not, you spend 15 to life in 19 prison. I know that. . . . 20 21 (R.T. 80, 82). 22 23 Petitioner also admitted that he had received a twenty-year 24 sentence for first degree robbery, and he stipulated before the jury 25 that he was a felon (R.T. 61-62). As indicated above, exhibits 26 attached to Petitioner’s Reply show that all three prior robberies 27 carried a sentence of “imprisonment for a term exceeding one year.” 28 In fact, Petitioner received prison sentences exceeding one year for 1 all three prior convictions. 2 3 Petitioner’s trial testimony and exhibits compellingly prove that 4 Petitioner was aware, at the time of the instant offense, that he 5 belonged to the relevant category of persons barred from possessing a 6 firearm. Consequently, Petitioner has failed to show his “actual 7 innocence” of the ACCA sentence. See Greer v. United States, 141 S. 8 Ct. 2090, 2097 (2021) (defendants’ prior convictions constituted 9 “substantial evidence that they knew they were felons”; “If a person 10 is a felon, he ordinarily knows he is a felon. Felony status is 11 simply not the kind of thing that one forgets.”) (citation and 12 quotations omitted); United States v. Johnson, 979 F.3d 632, 639 (9th 13 Cir. 2020), cert. denied, 2021 WL 2519320 (U.S. June 21, 2021) (“In 14 light of the sentences imposed in his earlier cases, Johnson cannot 15 plausibly argue that a jury (or judge, if he opted again for a bench 16 trial) would find that he was unaware of his status as someone 17 previously convicted of an offense punishable by more than a year in 18 prison.”); United States v. Kisto, 2021 WL 2792275, at *7 (D. Ariz. 19 Apr. 29, 2021), adopted, 2021 WL 2221037 (D. Ariz. June 2, 2021) 20 (“Given Movant’s past felony convictions and sentences punishable (and 21 punished) with sentences in excess of one year, he has not shown that 22 ‘it is more likely than not that no reasonable juror would have 23 convicted him’ of violating § 922(g)(1)”) (parentheses in original). 24 25 Petitioner’s “autonomy interest” argument also fails to 26 demonstrate his purported “actual innocence.” Petitioner appears to 27 have borrowed this argument from the Fourth Circuit’s structural error 28 holding in United States v. Gary, 954 F.3d 194, 205 (4th Cir. 2020), 1 rev’d sub nom. Greer v. United States, 141 S. Ct. 2090 (2021). 2 However, the Supreme Court reversed this holding. See Greer v. United 3 States, 141 S. Ct. at 2096. A Rehaif error is not structural; 4 Petitioner’s “autonomy interest” argument fails as a matter of law. 5 See id. 6 7 Petitioner also alleges that, if he had known of Rehaif’s new 8 element requirement, he would have pled guilty. This allegation 9 plainly does not establish “actual innocence.” To the contrary, 10 Petitioner’s allegation that he would have pled guilty had he known of 11 Rehaif tends to contradict Petitioner’s claim of “actual innocence.” 12 See Leaks v. United States, 2020 WL 2092840, at *3 (M.D. Fla. May 1, 13 2020) (“Leaks’ insistence on his innocence contradicts his assertion 14 that he would have pleaded guilty.”). 15 16 Nor can Petitioner demonstrate “actual innocence” of the instant 17 offense on the ground that he supposedly had not possessed the 18 firearm. An individual’s mere assertion of “actual innocence,” 19 without the introduction of “evidence tending to show that he did not 20 commit the [acts] underlying his convictions,” is insufficient to show 21 “actual innocence.” See Marrero v. Ives, 682 F.3d at 1192; see also 22 Schlup v. Delo, 513 U.S. at 324 (“To be credible, [an actual 23 innocence] claim requires petitioner to support his allegations of 24 constitutional error with new reliable evidence -- whether it be 25 exculpatory scientific evidence, trustworthy eyewitness accounts, or 26 critical physical evidence -- that was not presented at trial. 27 Because such evidence is obviously unavailable in the vast majority of 28 cases, claims of actual innocence are rarely successful.”) (emphasis 1 added). 2 3 At trial, a police officer testified that he saw Petitioner 4 climbing to a roof while holding a gun (R.T. 22, 30-31). The 5 prosecution’s evidence also showed that, after officers apprehended 6 Petitioner, Petitioner said, “I threw down the gun” (R.T. 24). The 7 evidence further showed that, after the officers brought Petitioner to 8 the ground, they located a gun in Petitioner’s jacket pocket (R.T. 28- 9 29, 40-41, 45). Petitioner did testify that he supposedly did not 10 have a gun when he ran from police and that the gun allegedly belonged 11 to a woman with whom Petitioner was living (R.T. 74-76, 80). 12 Petitioner also denied telling an officer that Petitioner had the gun 13 (R.T. 89). However, the jury clearly rejected Petitioner’s version of 14 events, deliberating less than an hour before finding Petitioner 15 guilty (R.T. 111-13). Petitioner has failed to submit any new, 16 reliable evidence “tending to show that he did not commit the [acts] 17 underlying his conviction[].” See Marrero v. Ives, 682 F.3d at 1192; 18 see also Schlup v. Delo, 513 U.S. at 324. 19 20 In sum, Petitioner has not shown “actual innocence” of his 21 conviction sufficient to come within the “savings clause” of section 22 2255(e). 23 24 III. Transfer Is Inappropriate. 25 26 For the reasons discussed above, the present Petition is a 27 disguised section 2255 motion over which this Court lacks 28 jurisdiction. A court lacking jurisdiction over a civil action may 1 transfer the action to a court in which the action could have been 2 brought, provided the transfer is “in the interest of justice.” 28 3 U.S.C. § 1631; see Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th 4 Cir. 2001). “Normally transfer will be in the interest of justice 5 because normally dismissal of an action that could be brought 6 elsewhere is time consuming and justice-defeating.” Id. at 1074 7 (citations and quotations omitted). In the present case, however, a 8 transfer to the sentencing court would be an idle act. Transfer to 9 the sentencing court would not benefit Petitioner because the 10 sentencing court would be unable to entertain the matter absent 11 Eleventh Circuit authorization. See 28 U.S.C. §§ 2244, 2255(h); 12 Copeland v. Martinez, 2020 WL 2097745, at *3 (C.D. Cal. Apr. 30, 2020) 13 (transfer of successive section 2255 motion to sentencing court would 14 be futile where petitioner had not obtained authorization to file 15 motion from the court of appeals); Crosby v. Ives, 2014 WL 6884017 16 (C.D. Cal. Dec. 3, 2014) (same); Scott v. Ives, 2009 WL 2051432 (E.D. 17 Cal. July 10, 2009) (same). Petitioner evidently has not obtained 18 such authorization. The Eleventh Circuit’s docket does not reflect 19 that any person named Kenneth Prutting has obtained authorization to 20 file a second or successive section 2255 motion since the Eleventh 21 Circuit denied Petitioner’s application to file a second or successive 22 section 2255 motion on October 16, 2020. See 28 U.S.C. §§ 2244, 23 2255(h). Therefore, transfer is inappropriate. 24 /// 25 /// 26 /// 27 /// 28 ORDER 1 For the foregoing reasons, the Petition is denied and dismissed 2] without prejudice. 3 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 DATED: August 25, 2021.

Tye Mite

PERQY ANDERSON

9 UNITED STATES DISTRICT JUDGE 10 11] Presented this 25th day of 12} August, 2021, by: 13 14 /S/

CHARLES F. EICK

15] UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28