1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GRACIANO MARQUEZ-HUAZO, No. 2:21-cv-1540 KJN P 12 Petitioner, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 WARDEN, FCI-HERLONG,1 15 Respondent. 16 17 Petitioner, a federal prisoner, proceeds pro se with a petition for writ of habeas corpus 18 under 28 U.S.C. § 2241. Respondent’s motion to dismiss and renewed motion for appointment of 19 counsel is before the court. 20 As set forth below, the undersigned recommends that respondent’s motion to dismiss be 21 granted, and petitioner’s motion for appointment of counsel is denied. 22 //// 23 ////

24 1 As noted by respondent’s counsel, petitioner failed to name a respondent in either the original or the amended petition. However, the proper respondent in a federal habeas corpus petition is 25 the petitioner’s immediate custodian, and the court may substitute the proper respondent where an improper respondent is named. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). 26 In petitioner’s supplemental memorandum, petitioner named the United States of America as respondent. (ECF No. 5.) Therefore, the court substitutes the Warden of FCI-Herlong as 27 respondent in this matter, and directs the Clerk of the Court to interlineate the Warden of FCI- Herlong as respondent in the amended petition. Fed. R. Civ. P. 25(d); see Brittingham, 982 F.2d 28 at 379. 1 I. Background 2 On April 9, 2008, in the United States District Court for the District of Idaho, petitioner 3 was charged with conspiracy to distribute 500 grams or more of methamphetamine, attempted 4 distribution of 500 grams or more of methamphetamine, and possession of a firearm in 5 furtherance of a drug trafficking crime.2 United States v. Marquez-Huazo, No. 1:07-cr-0271 EJL 6 (D. Idaho) (hereafter “No. 1:07-cr-0271 EJL”) (ECF No. 87) (superseding indictment).3 During 7 the jury trial, petitioner moved for a judgment of acquittal as to the firearm offense, which the 8 district court denied. Id. (ECF No. 120). 9 The jury found petitioner guilty of all charged offenses. Id. (ECF No. 127.) Before and 10 during sentencing, petitioner objected to the U.S.S.G. drug quantity calculations. No. 1:07-cr- 11 0271 EJL (ECF No. 195). The district judge denied petitioner’s objections. Id. (ECF No. 195 at 12 16) (“It seems to me that this particular person is a major drug dealer. There is enough testimony 13 that he supplied massive amounts of quantities of meth. I tried to limit the amounts in order to try 14 to get something that would try to get me out of relying on anything which was beyond what I 15 could look at, and the best I could come up with is the 16.69 kilograms. And, therefore, I believe 16 the base offense is properly calculated to 38, denying the objection.”). 17 On August 11, 2008, petitioner was sentenced to 334 months in federal prison for the drug 18 offenses plus 60 months for the firearm offense, to be served consecutively, for a total prison term 19 of 394 months. Id. (ECF Nos. 155, 195.) 20 Petitioner appealed the denial of his motion for acquittal on the possession of a firearm in 21 furtherance charge and the district court’s estimation of the methamphetamine quantity used to 22 calculate petitioner’s sentence. On June 23, 2009, the United States Court of Appeals for the 23 Ninth Circuit affirmed petitioner’s convictions and sentence in a reasoned decision. Id. (ECF No. 24 213.) The appellate court held “that the district court did not err by denying Marquez-Huazo's 25

2 Petitioner was also charged with two related forfeiture counts, and petitioner stipulated to the 26 forfeiture of vehicles and firearm. Id. (ECF No. 195 at 6.) 27 3 The docket sheet for petitioner’s criminal case no. 1:07-cr-0271 EJL is at ECF No. 11-1. 28 1 motion for acquittal because a rational trier of fact could have found a nexus between the gun 2 discovered and the underlying offense.” Id. (ECF No. 213 at 2 (internal quotation and citation 3 omitted).) The Ninth Circuit further held “that the district court did not clearly err in determining 4 that Marquez-Huazo’s drug crimes involved 16.69 kilograms of methamphetamine, yielding a 5 base offense level of 38 under the Guidelines.” Id. (ECF No. 213 at 3.) 6 Petitioner filed a petition for panel rehearing, which was denied on July 22, 2009. Id. 7 (ECF No. 214.) 8 Petitioner filed a petition for writ of certiorari in the United States Supreme Court, which 9 was denied on November 29, 2010. Id. (ECF No. 222.) 10 On November 21, 2011, petitioner filed a motion to vacate under 28 U.S.C. § 2255, 11 alleging, inter alia, ineffective assistance of counsel related to the drug quantity calculation and 12 the denial of the motion to dismiss the firearms charge. No. 1:07-cr-0271 EJL (ECF No. 223). 13 Following an evidentiary hearing, the motion to vacate was denied on February 16, 2016. Id. 14 (ECF No. 232.) 15 On March 15, 2016, counsel for both parties filed a joint motion to reduce petitioner’s 16 sentence pursuant to 18 U.S.C. § 3582(C)(2), based on U.S.S.G. Amendment 782, which 17 retroactively reduced by two levels the base offense levels in the drug quantity table of U.S.S.G. 18 § 2D1.1. No. 1:07-cr-0271 EJL (ECF No. 234). On March 16, 2016, the Idaho district court 19 reduced petitioner’s sentence from 394 months to 328 months. Id. (ECF No. 235.) 20 On October 27, 2017, petitioner filed a document styled, “Petition for Relief Pursuant to 21 Fed. R. Civ. P. 60(b).” No. 1:07-cr-0271 EJL (ECF No. 238). The filing was construed as a 22 successive § 2255 motion and denied; the district court declined to issue a certificate of 23 appealability. No. 1:07-cr-0271 EJL (ECF No. 241.) 24 On October 25, 2021, petitioner filed an amended § 2241 petition. (ECF No. 8.) 25 II. Motion to Dismiss 26 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 27 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 28 entitled to relief in the district court. . . .” Rule 4 of the Rules Governing Section 2254 1 Cases.4 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an 2 answer if the motion attacks the pleadings for failing to exhaust state remedies or being in 3 violation of the state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th 4 Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state 5 remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural 6 grounds to review motion to dismiss for state procedural default). 7 III. The Instant Petition 8 Petitioner claims that the probation officer improperly calculated the drug quantity in the 9 presentence report; the government improperly calculated the drug quantity at sentencing; 10 conflicting statements during trial do not support the drug quantity calculated to sentence 11 petitioner; and the government failed to show that petitioner’s possession of the firearm was in 12 furtherance of a drug trafficking crime. (ECF No. 8.) Petitioner asks the court to vacate his 13 sentence and remand the case to the district court of Idaho for re-sentencing. (ECF No. 8 at 8.) 14 IV. Jurisdiction 15 Generally, 28 U.S.C. § 2255 provides the exclusive procedural mechanism by which a 16 federal prisoner may test the legality of detention. Harrison v. Ollison, 519 F.3d 952, 955 (9th 17 Cir. 2008). 18 By the terms of section 2255, a prisoner authorized to apply for section 2255 relief may not bring a section 2241 petition for a writ 19 of habeas corpus “if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such 20 court has denied him relief.” 21 Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988) (quoting 28 U.S.C. § 2255). 22 “Under the savings clause of § 2255, however, a federal prisoner may file a habeas corpus 23 petition pursuant to § 2241 to contest the legality of a sentence where his remedy under 24 § 2255 is ‘inadequate or ineffective to test the legality of his detention.’” Hernandez v. Campbell, 25 204 F.3d 861, 864-65 (9th Cir. 2000) (quoting 28 U.S.C. § 2255). “[A] § 2241 petition is 26 available under the ‘escape hatch’ of § 2255 when a petitioner (1) makes a claim of actual 27 4 Rules Governing Section 2254 Cases may be applied to other petitions for writ of habeas 28 corpus at the Court’s discretion. See, id., Rule 1; Fed. R. Civ. P 81(a)(4). 1 innocence, and (2) has not had an ‘unobstructed procedural shot’ at presenting that claim.” 2 Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (citations omitted). This is a narrow 3 exception. See Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). The burden is on the 4 prisoner to show that his § 2255 remedies are inadequate or ineffective. See, e.g., Redfield v. 5 United States, 315 F.2d 76, 83 (9th Cir. 1963). 6 In the Ninth Circuit, a claim of actual innocence for purposes of the § 2255 savings clause 7 is tested using the standard articulated by the Supreme Court in Bousley v. United States, 523 8 U.S. 614 (1998). Stephens, 464 U.S. at 898. Therefore, actual innocence means factual 9 innocence, not legal insufficiency. See Bousley, 523 U.S. at 623. The petitioner must introduce 10 “evidence tending to show that he did not commit the [acts] underlying his convictions.” Marrero 11 v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). To demonstrate that he has not had an unobstructed 12 shot to raise his claim previously, a petitioner must show that the claim did not become available 13 until after he exhausted his direct appeal and first § 2255 motion. Harrison, 519 F.3d at 960. 14 Discussion 15 First, respondent asserts that petitioner fails to state a federal constitutional violation. 16 Respondent is correct. Section 2241(c)(3) provides that :[t]he writ of habeas corpus shall not 17 extend to a prisoner unless-- . . . (3) He is in custody in violation of the Constitution or laws or 18 treaties of the United States . . . .” 28 U.S.C. § 2241(c)(3). In the amended petition, petitioner 19 identifies no violation of the Constitution or laws or treaties of the United States, identifying only 20 alleged fact-based errors during trial and sentencing. Thus, respondent’s motion to dismiss 21 should be granted. 22 Second, as argued by respondent, because petitioner only challenges the validity of his 23 sentence, and not the execution of his sentence, petitioner must present such claims to the 24 sentencing court. Stephens, 464 F.3d at 897. A federal prisoner who wishes to challenge the 25 validity or constitutionality of his federal conviction or sentence must do so by moving the court 26 that imposed the sentence to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. 27 Alaimalo v. United States, 645 F.3d 1042, 1046 (9th Cir. 2011). Thus, this court lacks 28 //// 1 jurisdiction over petitioner’s claims unless he can demonstrate that he is eligible for consideration 2 under the escape hatch provision in 28 U.S.C. § 2255(e). 3 As set forth above, petitioner must meet both prongs of the escape hatch: that he makes a 4 claim of actual innocence as to his underlying conviction; and has never had an ‘unobstructed 5 procedural shot’ at presenting the claim. Harrison, 519 F.3d at 959; Muth v. Fondren, 676 F.3d 6 815, 819 (9th Cir. 2012). 7 Here, petitioner cannot demonstrate that he never had an unobstructed procedural shot at 8 presenting his claims because petitioner challenged both issues -- the quantity of drugs and the 9 use of firearm in furtherance of drug trafficking conviction -- both on direct appeal and in his 10 § 2255 motion in the District of Idaho. No. 1:07-cr-0271 EJL (ECF Nos. 213, 223.) Petitioner 11 does not establish that the legal basis for his claims did not arise until after he had exhausted his 12 direct appeal and first § 2255 motion or that the law changed in any way relevant to his claim 13 after his first §2255 motion. See Harrison, 519 F.3d at 960. 14 In his opposition, petitioner claims he did not have an unobstructed procedural shot at 15 presenting his claims because “just like” in Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020), 16 petitioner’s claims did not become available until after his § 2255 motion was denied. (ECF No. 17 16 at 7.) Petitioner contends he did not timely receive court records and therefore could not make 18 his arguments within the time frame required under the habeas statutes. However, such argument 19 does not demonstrate that the legal basis for his claim did not arise until after the § 2255 motion 20 was denied. Rather, petitioner’s challenges remain the same: he contends the drug calculation 21 was improperly inflated and that his possession of the firearm did not constitute possession in 22 furtherance of a drug trafficking crime. Such challenges are all based on alleged factual disputes, 23 not a change in the law. Contrary to petitioner’s argument, Allen v. Ives is factually and legally 24 distinguishable from petitioner’s case. Allen was sentenced as a career offender in 1997 when the 25 sentencing guidelines were mandatory. As the Ninth Circuit explained: 26 Allen’s claim of actual innocence is based on a retroactive change of law, which transformed his Connecticut marijuana conviction from 27 a predicate crime into a non-predicate crime. In other words, Allen claims that his prior conviction is not a conviction for a predicate 28 crime, that he is therefore actually innocent of a predicate crime, and 1 that he is thus actually innocent of the mandatory sentencing enhancement. 2 3 Allen, 950 F.3d at 1190. Allen was unable to have an unobstructed procedural shot at presenting 4 his claim of actual innocence because such claim “was foreclosed by existing precedent at the 5 time of his direct appeal and § 2255 motion.” Allen, 950 F.3d at 1190. Here, no such precedent 6 or retroactive change of law stood in petitioner’s way.5 7 Because petitioner fails to establish that he did not have an unobstructed procedural shot 8 at presenting the instant claims, this court need not reach the question of whether petitioner can 9 demonstrate actual innocence. Muth, 575 F.3d at 819 (“[F]or Petitioner’s claim to be a legitimate 10 § 2241 petition, he must satisfy both . . . requirements.”); see also Smith v. Ciolli, 2021 WL 11 3140713, at *1 (E.D. Cal. July 26, 2021) (dismissing § 2241 petition for lack of jurisdiction 12 because whether or not the prisoner’s sentence was mandatory under a mandatory sentencing 13 scheme, the prisoner failed to establish he was unable to present his claims either on direct appeal 14 or in his first § 2255 motion). 15 Accordingly, petitioner fails to satisfy the escape hatch criteria of § 2255, and this court 16 lacks jurisdiction over the § 2241 petition. Because petitioner has not been granted leave by the 17 Court of Appeals to file a second or successive § 2255 motion, it would be futile to transfer the 18 petition to the District Court of Idaho for consideration as a § 2255 motion. 19 V. Appointment of Counsel 20 Petitioner requested the appointment of counsel. There currently exists no absolute right 21 to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th 22 Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of 23 the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. 24 In light of the above findings, the court does not find that the interests of justice would be served 25 by the appointment of counsel. 26 5 In his opposition, petitioner also argues that The First Step Act expanded the safety valve to 27 include persons with up to 4 criminal history points and is retroactive, and thus supports petitioner’s argument that he should be resentenced to a sentence below the mandatory minimum. 28 (ECF No. 16 at 7-8.) Petitioner did not include a claim under The First Step Act in his petition. 1 | VI. Conclusion 2 For all of the above reasons, respondent’s motion to dismiss should be granted, and the 3 || motion for appointment of counsel is denied. 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. The Clerk of the Court is directed to assign a district judge to this case; 6 2. The Warden of FCI-Herlong is substituted as respondent in this action; 7 3. The Clerk of the Court is directed to interlineate the name “Warden of FCI-Herlong” as 8 || respondent in the amended petition (ECF No. 8 at 1); and 9 4. Petitioner’s motion for appointment of counsel (ECF No. 16) is denied. 10 Further, IT IS RECOMMENDED that: 11 1. Respondent’s motion to dismiss (ECF No. 11) be granted; and 12 2. The § 2241 petition be dismissed without prejudice. 13 These findings and recommendations are submitted to the United States District Judge 14 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 15 || after being served with these findings and recommendations, any party may file written 16 || objections with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 || objections shall be served and filed within fourteen days after service of the objections. The 19 || parties are advised that failure to file objections within the specified time may waive the right to 20 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 | Dated: March 25, 2022 ” Aectl Aharon |] fmarq1540.mtd.2241 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

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