United States District Court, D. Oregon
DOUGLAS E. MELTER, Petitioner,
WARDEN IVES, FCI Sheridan, Respondent.
A. Hernandez United States District Judge
an inmate at FCI Sheridan, brings this habeas corpus action
pursuant to 28 U.S.C. § 2241. For the reason that
follow, the court DENIES the Petition for Writ of Habeas
was convicted in the District Court for the Western District
of Pennsylvania on a plea of guilty to charges of Attempting
to Induce a Minor to Engage in Illegal Sexual Activity,
Possession of Material Depicting the Sexual Exploitation of a
Minor, and Possession of a Firearm by a Convicted Felon. On
August 12, 2013, District Judge Maurice B. Cohill sentenced
Petitioner to a term of imprisonment of 360 months.
Petitioner appealed, and on February 25, 2015, the Third
Circuit Court of Appeals granted the United States'
Motion to Enforce Appellate Waiver by Summary Action.
October 2, 2015, Petitioner filed a motion to vacate, set
aside, or correct the sentence under 28 U.S.C. § 2255 in
the Western District of Pennsylvania. On December 7, 2016,
the district court denied his Petition. On April 28, 2017,
the Third Circuit Court of Appeals denied a certificate of
January 8, 2018, Petitioner filed his Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 in this
court. Petitioner asks this court to vacate his conviction
for Possession of a Firearm by a Felon on the basis that he
is actually innocent of the charge and the prosecution failed
to disclose exculpatory evidence that would show his
innocence. The factual basis of Petitioner's claims is a
discrepancy in the type of ammunition needed for the weapon
in question and the type of ammunition purchased or possessed
petitions brought under § 2241 are subject to summary
dismissal pursuant to Rules 1(b) and 4 of the Rules Governing
Section 2254 Cases. Under Rule 1(b), the Rules Governing
§ 2254 Cases apply to habeas corpus petitions brought
pursuant to § 2241. Under Rule 4, the court must
undertake a preliminary review of each petition for writ of
habeas corpus. Upon such review, "[i]f it plainly
appears from the face of the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner."
federal court may not consider a habeas action over which it
has no jurisdiction. Hernandez v. Campbell, 204 F.3d
861, 865 (9th Cir. 2000). "[T]o determine whether
jurisdiction is proper, a court must first determine whether
a habeas petition is filed pursuant to § 2241 or §
225 5 before proceeding to any other issue."
Hernandez, 204 F.3d at 865.
federal prisoner may challenge the manner, location, or
conditions of a sentence's execution by filing a petition
pursuant to § 2241 in the "custodial court, "
that is, the court of the district in which he is
incarcerated. Stephens v. Herrera, 464 F.3d 895, 897
(9th Cir. 2006); Hernandez, 204 F.3d at 864-65. If
the prisoner challenges the legality of his conviction or
sentence as Petitioner does here, however, a motion under 28
U.S.C. § 2255, filed in the court of conviction, is the
exclusive means by which he may test the legality of his
detention. Stephens, 464 F.3d at 897; Tripati v.
Henman, 843 F.2d 1160, 1161-62 (9th Cir. 1988).
Generally, a prisoner may not collaterally attack a federal
conviction or sentence by filing a petition for writ of
habeas corpus under 28 U.S.C. § 2241 in the custodial
court, as Petitioner seeks to do in this case.
Tripati, 843 F.2d at 1162.
exception to the general rule, commonly referred to as the
"escape hatch" or the "savings clause, "
"permits a federal prisoner to file a habeas corpus
petition pursuant to § 2241 to contest the legality of a
sentence where his remedy under § 2255 is inadequate or
ineffective to test the legality of his detention."
Stephens, 464 F.3d at 897 (citations and internal
quotations omitted); see also 28 U.S.C. § 2255.
The exception is very narrow. Ivy v. Pontesso, 328
F.3d 1057, 1059 (9th Cir. 2003). " [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." Marrero v. Ives, 682 F.3d 1190, 1192
(9th Cir. 2012) (internal quotations omitted), cert,
denied, 568 U.S. 1173(2013).
general rule in this circuit is that the ban on unauthorized
second or successive petitions does notperse make
§ 2255 'inadequate or ineffective.'"
Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000)
(quoting 28 U.S.C. § 2255). The remedy under § 2255
usually will not be deemed inadequate or ineffective merely
because a prior § 2255 motion was denied or because a
remedy under § 2255 is procedurally barred. See
Aronson v. May, 85 S.Ct. 3, 5 (1964) (denial of a prior
§ 2255 motion is insufficient to render § 2255
inadequate). The burden is on the petitioner to show that the
remedy is inadequate or ineffective. Redfield v. United
States, 315 F.2d 76, 83 (9th Cir. 1963).
Construction of the Petition as ...