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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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10 JIA WU CHEN, Case No. 1:24-cv-00153-EPG-HC

11 Petitioner, FINDINGS AND RECOMMENDATION TO

DISMISS PETITION FOR WRIT OF

12 v. HABEAS CORPUS FOR LACK OF

JURISDICTION

13 WARDEN, USP ATWATER,

ORDER DIRECTING CLERK OF COURT

14 Respondent. TO ASSIGN DISTRICT JUDGE

15 16 Petitioner Jia Wu Chen is a federal prisoner proceeding pro se with a petition for writ of 17 habeas corpus pursuant to 28 U.S.C. § 2241. As this Court does not have jurisdiction to entertain 18 the instant petition pursuant to the savings clause of 28 U.S.C. § 2255(e), the undersigned 19 recommends dismissal of the petition. 20 I. 21 BACKGROUND 22 Petitioner is currently housed at the United States Penitentiary in Atwater, California. 23 (ECF No. 1 at 2.1) On February 2, 2024, Petitioner filed the instant petition wherein he 24 challenges his conviction after pleading guilty to hostage taking in the United States District 25 Court for the Eastern District of New York. (Id.) Petitioner asserts that the failure to advise him 26 of his right to consular assistance and failure to notify the consulate upon his arrest and detention 27 as required by the Vienna Convention on Consular Relations “rendered the judgment void, in 1 violation of his Sixth Amend. right to counsel and Fifth Amend. right to notice guaranteed by 2 Due process under the Constitution, treaties, and laws of the United States.” (ECF No. 1 at 6.) 3 II. 4 DISCUSSION 5 Rule 4 of the Rules Governing Section 2254 Cases2 requires preliminary review of a 6 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 7 to file a response, if it “plainly appears from the petition and any attached exhibits that the 8 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 9 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 10 A federal court may not entertain an action over which it has no jurisdiction. Hernandez 11 v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam). Thus, a district court must address 12 the threshold question whether a petition was properly brought under § 2241 or § 2255 in order 13 to determine whether the district court has jurisdiction. Hernandez, 204 F.3d at 865. A federal 14 prisoner who wishes to challenge the validity or constitutionality of his federal conviction or 15 sentence must do so by moving the court that imposed the sentence to vacate, set aside, or 16 correct the sentence under 28 U.S.C. § 2255. Alaimalo v. United States, 645 F.3d 1042, 1046 17 (9th Cir. 2011). “The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means 18 by which a federal prisoner may test the legality of his detention, and that restrictions on the 19 availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” 20 Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citations omitted). 21 Nevertheless, a “savings clause” or “escape hatch” exists in § 2255(e) by which a federal 22 prisoner may seek relief under § 2241 if he can demonstrate the remedy available under § 2255 23 to be “inadequate or ineffective to test the validity of his detention.” Alaimalo, 645 F.3d at 1047 24 (internal quotation marks omitted) (quoting 28 U.S.C. § 2255); Harrison v. Ollison, 519 F.3d 25 952, 956 (9th Cir. 2008); Hernandez, 204 F.3d at 864–65. The Ninth Circuit has recognized that 26 it is a very narrow exception. See Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). The

27 2 The Court may apply any or all of these rules to habeas corpus petitions that are not brought under 28 U.S.C. § 2254. Rule 1(b), Rules Governing Section 2254 Cases in the United States District Courts, 28 1 remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a 2 prior § 2255 motion was denied, or because a remedy under § 2255 is procedurally barred. Ivy, 3 328 F.3d at 1059. The burden is on the petitioner to show that the remedy is inadequate or 4 ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 5 A petitioner may proceed under § 2241 pursuant to the savings clause when the petitioner 6 “(1) makes a claim of actual innocence, and (2) has not had an ‘unobstructed procedural shot’ at 7 presenting that claim.” Stephens, 464 F.3d at 898 (citing Ivy, 328 F.3d at 1060). With respect to 8 the first requirement, in the Ninth Circuit a claim of actual innocence for purposes of the § 2255 9 savings clause is tested by the standard articulated by the Supreme Court in Bousley v. United 10 States, 523 U.S. 614 (1998). Stephens, 464 F.3d at 898. In Bousley, the Supreme Court 11 explained that “[t]o establish actual innocence, petitioner must demonstrate that, in light of all 12 the evidence, it is more likely than not that no reasonable juror would have convicted him.” 523 13 U.S. at 623 (internal quotation marks and citation omitted). 14 With respect to the second requirement, “it is not enough that the petitioner is presently 15 barred from raising his claim of innocence by motion under § 2255. He must never have had the 16 opportunity to raise it by motion.” Ivy, 328 F.3d at 1060. In determining whether a petitioner 17 never had an unobstructed procedural shot to pursue his claim, the Court considers “(1) whether 18 the legal basis for petitioner’s claim ‘did not arise until after he had exhausted his direct appeal 19 and first § 2255 motion;’ and (2) whether the law changed ‘in any way relevant’ to petitioner’s 20 claim after that first § 2255 motion.” Harrison, 519 F.3d at 960 (quoting Ivy, 328 F.3d at 1060– 21 61). 22 Here, Petitioner does not make a claim of actual innocence. Petitioner’s claim regarding 23 the failure to advise him of his right to consular assistance and the failure to notify the consulate 24 upon his arrest and detention challenges the legal sufficiency of Petitioner’s conviction rather 25 than “demonstrate that, in light of all the evidence, it is more likely than not that no reasonable 26 juror would have convicted him.” Bousley, 523 U.S. at 623 (internal quotation marks and 27 citation omitted). Additionally, Petitioner does not establish that he has not had an unobstructed 1 | raised in the instant petition “did not arise until after Petitioner exhausted his direct appeal and 2 | first § 2255 motion,” and there is no indication that “the law changed ‘in any way relevant’ to 3 | petitioner’s claim after that first § 2255 motion.” Harrison, 519 F.3d at 960 (quoting Ivy, 328 4 | F.3d at 1060-61). 5 Il. 6 RECOMMENDATION & ORDER 7 Based on the foregoing, the undersigned HEREBY RECOMMENDS that the petition for 8 | writ of habeas corpus be DISMISSED for lack of jurisdiction. 9 Further, the Clerk of Court is DIRECTED to randomly assign a District Court Judge to 10 | the present matter. 11 This Findings and Recommendation is submitted to the assigned United States District 12 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 13 | Rules of Practice for the United States District Court, Eastern District of California. Within 14 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 15 | written objections with the court and serve a copy on all parties. Such a document should be 16 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 17 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 18 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 19 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 20 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21

IT IS SO ORDERED.

23| Dated: February 9, 2024 [Je hey

UNITED STATES MAGISTRATE JUDGE

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