1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAMIRO ESTEBAN GRANDOS- Case No. 1:22-cv-01495-HBK (HC)

DOMINGUEZ,

12 ORDER TO ASSIGN DISTRICT JUDGE Petitioner, 13 FINDINGS AND RECOMMENDATIONS TO v. DISMISS PETITION FOR WRIT OF 14 HABEAS CORPUS FOR LACK OF WARDEN, FCI Mendota, JURISDICTION 15 Respondent. FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. No. 6) 17

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19 20 Petitioner, Ramiro Esteban Grandos-Dominguez (“Petitioner”), a federal prisoner 21 proceeding pro se, has pending an amended petition for writ of habeas corpus under 28 U.S.C. § 22 2241. (Doc. No. 6, “Amended Petition”).1 This matter is before the Court for preliminary 23 review. See R. Governing § 2254 Cases 4; 28 U.S.C. § 2243. Under Rule 4,2 a district court 24

25 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 26 2 The Rules Governing Section 2254 Cases may be applied to petitions for writ of habeas corpus other than those brought under § 2254 at the Court’s discretion. See Rule 1 of the Rules Governing Section 2254 27 Cases. Civil Rule 81(a)(2) provides that the rules are “applicable to proceedings for . . . habeas corpus . . . to the extent that the practice in such proceedings is not set forth in statutes of the United States and has 28 heretofore conformed to the practice of civil actions.” Fed. R. Civ. P 81(a)(2). 1 must dismiss a habeas petition if it “plainly appears” that the petitioner is not entitled to relief. 2 See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 3 1127 (9th Cir. 1998). Courts have “an active role in summarily disposing of facially defective 4 habeas petitions” under Rule 4. Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation 5 omitted). The Court, having screened the Amended Petition, finds no response is required from 6 Respondent. Instead, the undersigned RECOMMENDS the Amended Petition be dismissed sua 7 sponte for lack of jurisdiction. 8 I. BACKGROUND 9 Petitioner, a federal prisoner, was sentenced to 57 months of imprisonment by the U.S. 10 District Court for the Western District of Texas (“WDTX”) for his plea-based conviction for 11 illegal reentry in violation of 8 U.S.C. § 1326(a).3 See Case No. 4:21-cr-00680-DC-DF-1, Crim. 12 Doc. Nos. 26-27.4 Petitioner appealed to the Fifth Circuit Court of Appeals on December 14, 13 2021, and the judgment of the WDTX was affirmed. Crim. Doc. No. 33. On December 20, 2022, 14 Petitioner filed a motion to vacate under 28 U.S.C. § 2255 in the WDTX court of conviction, and 15 that motion remains pending. See Crim. Doc. No. 39-41. 16 On November 18, 2022, Petitioner filed a petition for writ of habeas corpus under § 2241 17 with this Court. (Doc. No.1). Upon screening, the undersigned found the initial petition deficient 18 and granted Petitioner leave to file an amended petition to cure the deficiencies in his initial 19 petition. (Doc. No. 5). In compliance, Petitioner filed an Amended Petition on January 3, 2023. 20 (Doc. No. 6). The Amended Petition raises a single ground for relief: Petitioner is actually 21 innocent of his conviction under § 1326 because “§ 1326 violates the equal protection guarantee 22 of the Fifth Amendment under the standard articulated in Village of Arlington Heights v. 23 Metropolitan Housing Development Corp., 429 U.S. 252 (1977).” (Doc. No. 6 at 3). 24 //// 25 3 The Court notes that Petitioner’s name is spelled “Ramiro Esteban Granados-Dominguez” in his WDTX 26 criminal case. See generally Case No. 4:21-cr-00680-DC-DF-1. However, despite the single letter difference in the spelling of Petitioner’s name in the instant case, all other identifying information, 27 including the conviction and sentence identified in his Amended Petition, are identical. (See Doc. No. 6). 4 The undersigned cites to the record in Petitioner’s underlying EDVA criminal case as “Crim. Doc. No. 28 _.” 1 II. APPLICABLE LAW AND ANALYSIS 2 Although brought under the guise of § 2241, Petitioner challenges the legality of his 3 original conviction, which is properly brought via a direct appeal or via a § 2255 petition in the 4 WDTX court of conviction. A § 2241 petition is reserved for federal prisoners challenging “the 5 manner, location, or conditions of a sentence’s execution.” Harrison v. Ollison, 519 F.3d 952, 6 956 (9th Cir. 2008). Federal prisoners seeking to challenge the legality of their confinement must 7 do so through a § 2255 motion. See Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). In 8 limited circumstances, federal prisoners may challenge the legality of their confinement through a 9 § 2241 petition by utilizing the so-called “savings clause” or “escape hatch” provision of § 10 2255(e). Id. at 1192. This portal permits a federal prisoner to challenge the legality of 11 confinement if he can establish that the remedy provided under § 2255 is “inadequate or 12 ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). To demonstrate a remedy is 13 “inadequate or ineffective” a petitioner must: (1) make a claim of actual innocence, and (2) not 14 had an “unobstructed procedural shot at presenting that claim.” Shepherd v. Unknown Party, 15 Warden, FCI Tucson, 54 F.4th 1075, 1076 (9th Cir. 2021). A prisoner cannot circumvent the 16 limitations imposed on successive petitions by restyling his petition as one under § 2241. 17 Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Moore v. Reno, 185 F.3d 1054, 1055 (9th 18 Cir. 1999) (per curiam) (petitioner attempted to circumvent AEDPA’s successive motion 19 provisions by bringing § 2255 claims in a § 2241 petition). 20 The Ninth Circuit has adopted the Bousely standard for claims of actual innocence brought 21 under § 2255 escape hatch provision that requires a petitioner to “demonstrate that, in light of all 22 the evidence, it is more likely than not that no reasonable juror would have convicted him.” 23 Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (citing Bousley v. United States, 523 U.S. 24 614 (1998)). Actual innocence means factual innocence, not mere legal insufficiency. See 25 Bousley, 523 at 623. Here, Petitioner makes no claim of being factually innocent of illegal 26 reentry in violation of 8 U.S.C. § 1326(a). (See generally Doc. No. 6). Instead, he takes issue 27 with § 1326 itself, and argues it is being applied discriminatorily in violation of his equal 28 protection rights pursuant to the Supreme Court’s decision in Village of Arlington Heights v. 1 Metropolitan Housing Development Corp., 429 U.S. 252 (1977). (Doc. No. 6). Thus, Petitioner 2 fails to make a claim of actual innocence as required to qualify for the escape hatch provision of § 3 2255. 4 Further, whether a petitioner has not had an “unobstructed procedural shot” at raising his 5 habeas claims, requires the court to consider “(1) whether the legal basis for petitioner’s claim 6 ‘did not arise until after he had exhausted his direct appeal and first § 2255 motion;’ and (2) 7 whether the law changed ‘in any way relevant’ to petitioner’s claim after that first § 2255 8 motion.” Harrison, 519 F.3d at 960 (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 9 2003)). In the instant case, Petitioner’s first § 2255 motion to vacate is still pending in the 10 WDTX. Thus, Petitioner cannot make the necessary showing that he has not had an unobstructed 11 procedural shot at raising his habeas claims. See Swan v. United States of America, 2021 WL 12 2987149 at *3 (C.D. Cal. Jul. 15, 2021) (“Petitioner cannot show that he lacked an unobstructed 13 procedural shot at presenting his claims because all of the claims in the Petition were or could 14 have been raised in the 2255 motion, which is still pending.”) 15 Finally, “[e]ven if Petitioner satisfied the savings clause and the Court could entertain his 16 petition, the claims are meritless. Courts in this circuit have repeatedly rejected the argument that 17 § 1326 is presumptively unconstitutional because it was enacted with a discriminatory purpose 18 and has a disparate impact.” Vera Martinez v. Warden, FCI-Mendota, 2022 WL 17821361 at *3 19 (E.D. Cal. Dec. 20, 2022) (collecting cases). 20 Based on the foregoing and controlling precedent, Petitioner fails to satisfy the escape 21 hatch criteria of § 2255. Therefore, this Court lacks jurisdiction over the § 2241 Amended 22 Petition. Because Petitioner’s § 2255 motion to vacate remains pending in his court of 23 conviction, it would be futile to transfer the petition to the WDTX for consideration as a § 2255 24 motion as it would be subject to dismissal. The undersigned recommends that the Amended 25 Petition be dismissed for lack of jurisdiction. 26 Accordingly, it is ORDERED: 27 The Clerk of Court is directed to assign this case to a district judge for the purposes of 28 1 | reviewing these findings and recommendations. 2 It is further RECOMMENDED: 3 1. The Amended Petition (Doc. No. 6) be DISMISSED for lack of jurisdiction. 4 2. The Clerk of Court be directed to terminate any pending motions/deadlines and 5 close this case. 6 NOTICE TO PARTIES 7 These findings and recommendations will be submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 9 | days after being served with these findings and recommendations, a party may file written 10 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 11 | Findings and Recommendations.” Parties are advised that failure to file objections within the 12 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 13 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 1S Dated: _ January 9, 2023 law ZA. foareh Zackte 16 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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