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Edwin Marrero v. Richard B. Ives

June 19, 2012

EDWIN MARRERO, PETITIONER-APPELLANT,
v.
RICHARD B. IVES, WARDEN;
JONATHAN KING, PROSECUTOR;
PAUL DELACOURT, FBI AGENT,
RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Senior District Judge, Presiding D.C. No. 2:08-cv-01853- FCD-DAD

The opinion of the court was delivered by: Graber, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted April 19, 2012-San Francisco, California

Before: Mary M. Schroeder, Sidney R. Thomas, and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

OPINION

Petitioner Edwin Marrero filed a petition for habeas corpus, pursuant to 28 U.S.C. § 2241, in the Eastern District of California. The district court construed the petition as a motion under 28 U.S.C. § 2255 and dismissed it for lack of jurisdiction. We affirm.

The government charged Petitioner, in the United States District Court for the Northern District of Illinois, with two counts of interference with interstate commerce by threat or violence, in violation of 18 U.S.C. § 1951, and use of a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924. The jury convicted him on all counts. After classifying Petitioner as a career offender under the United States Sentencing Guidelines, the court sentenced him to 240 months' imprisonment on counts 1 and 2 and an additional 84 months' imprisonment for the firearm charge.

Petitioner appealed to the Seventh Circuit, which affirmed the convictions and sentence in 2002. The United States Supreme Court denied certiorari. Petitioner then filed a motion under § 2255 to vacate or set aside his sentence, which the District Court for the Northern District of Illinois denied. According to Petitioner, he did not receive notice of that denial until almost a year later. He then filed a Notice of Appeal with respect to the § 2255 proceeding, which the court dismissed as untimely.

Several months after that dismissal, in 2008, Petitioner filed a pro se habeas petition under § 2241 in the Eastern District of California, the jurisdiction in which he was then incarcerated. Concluding that Petitioner had failed to make an adequate claim of actual innocence, the district court construed the petition as a § 2255 motion and dismissed it for lack of jurisdiction. Petitioner timely appeals. We review de novo the dismissal of a habeas petition. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003).

[1] A federal prisoner who seeks to challenge the legality of confinement must generally rely on a § 2255 motion to do so. See Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) ("The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241." (citation omitted)). There is, however, an exception to that general rule. Under the "escape hatch" of § 2255, a federal prisoner may file a § 2241 petition if, and only if, the remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." Id. (internal quotation marks omitted). We have held that a prisoner may file a § 2241 petition under the escape hatch when the prisoner "(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Id. at 898 (internal quotation marks omitted).

[2] Petitioner makes two separate claims of "actual innocence." First, Petitioner uses the phrase "actual innocence" in his petition and seems to suggest that he was wrongly convicted. Construing his pro se filing liberally, Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010), Petitioner may have intended to raise the claim that he was factually innocent of his crimes of conviction. But he introduced no evidence tending to show that he did not commit the robberies underlying his convictions. Thus, even if Petitioner raised a claim of factual innocence, he failed to demonstrate that, "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Stephens, 464 F.3d at 898 (internal quotation marks omitted). Furthermore, Petitioner has not demonstrated that he never had an "unobstructed procedural shot" at presenting the claim that he was factually innocent of his crimes. Although he asserts that he did not receive timely notice of the Illinois district court's dismissal of his § 2255 motion, he fails to argue that "the legal basis for [his] claim did not arise until after he had exhausted his direct appeal and first § 2255 motion." Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (internal quotation marks omitted). He therefore fails to meet either requirement for filing a § 2241 petition under the escape hatch.

Second, Petitioner argues that he is "actually innocent" of being a career offender under the Sentencing Guidelines. He argues that, under the 2007 amendments to the Sentencing Guidelines, two of his prior convictions are now considered "related" offenses, because he was sentenced for them on the same day, and that he therefore would not qualify as a career ...


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