Barry Douglas Stead v. B. Birkholz

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA [11] BARRY DOUGLAS STEAD, Case No. 2:22-cv-05474-FWS-AGR [12] Petitioner, ORDER OF DISMISSAL [13] v. [14] B. BIRKHOLZ, Warden, [15] Respondent. [17] 18 I PROCEDURAL HISTORY [19] 20 On August 1, 2022, Petitioner constructively filed a Petition for Writ of 21 Habeas Corpus by a Person in Federal Custody (“Petition”) pursuant to 28 U.S.C. [22] § 2241. [23] On August 15, 2022, the magistrate judge issued an Order to Show Cause [24] 25 ordering Petitioner to show cause on or before September 14, 2022, why this 26 action should not be dismissed without prejudice based on lack of jurisdiction. [27] (Dkt. No. 4.) Petitioner was warned that if he failed to file a timely response to the [28] 1 order to show cause, the Petition for Writ of Habeas Corpus may be dismissed [2] without prejudice based on lack of jurisdiction. (Id. at 4.) [3] Petitioner did not file a response to the order to show cause or request an [4] 5 extension of time to do so. The Supreme Court’s subsequent decision in Jones v. 6 Hendrix, 143 S. Ct. 1857 (2023), confirms that this Court lacks jurisdiction over [7] the Petition. [8] II [9] 10 SUMMARY OF PROCEEDINGS 11 Petitioner’s underlying criminal case was filed in the District of South [12] Dakota. United States v. Stead, CR 95-30098 (D.S.D.) (hereinafter “South [13] Dakota Criminal Case”). On April 3, 1996, a jury found Petitioner guilty of [14] 15 second-degree murder, assaulting a federal officer, using or carrying a firearm 16 during and in relation to a crime of violence in violation of 18 U.S.C. § 924 (c)(1), [17] and being a felon in possession of a firearm. (Dkt. No. 41, South Dakota Criminal [18] Case.) The Eighth Circuit affirmed the judgment. United States v. Stead, 1997 [19] 20 U.S. App. LEXIS 3902 (8th Cir. Mar. 6, 1997). 21 On March 16, 1998, Petitioner filed a motion to vacate, set aside, or correct [22] the sentence under 28 U.S.C. § 2255 , and an amendment to that motion. (Dkt. [23] Nos. 70, 73, South Dakota Criminal Case.) [24] 25 On September 3, 1999, the District Court denied Petitioner’s motion to 26 vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 . Stead v. [28] 1 United States, 64 F. Supp. 2d 1064 (D.S.D. 1999); United States v. Stead, 1999 2 U.S. Dist. LEXIS 14818 (D.S.D. Sept. 3, 1999). [3] On January 30, 2021, the District Court denied Petitioner’s motion for [4] 5 compassionate release. 2021 U.S. Dist. LEXIS 20604 (D.S.D. Jan. 30, 2021). 6 III [7] DISCUSSION [8] A federal prisoner who challenges the legality of his federal conviction or [9] 10 sentence ordinarily must file a motion to vacate, set aside, or correct the sentence 11 under 28 U.S.C. § 2255 . Harrison v. Ollison, 519 F.3d 952, 954 (9th Cir. 2008). [12] A motion under §2255 must be filed in the sentencing court. 28 U.S.C. § 2255 ; [13] Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam). By [14] 15 contrast, a federal prisoner challenging the manner, location, or conditions of his 16 sentence must file a petition for writ of habeas corpus under 28 U.S.C. § 2241 in [17] the district where Petitioner is in custody. Braden v. 30th Judicial Circuit Court of 18 Ky., 410 U.S. 484, 494-95 (1973); Hernandez, 204 F.3d at 864 . [19] 20 A federal prisoner may not substitute a § 2241 petition for a § 2255 motion. 21 See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001) (“Merely labeling a [22] section 2255 motion as a section 2241 petition does not overcome the bar against [23] successive section 2255 motions”). [24] 25 A narrow exception exists under § 2255’s “savings clause.” A prisoner may 26 proceed under § 2241 “if, and only if, the remedy under § 2255 is ‘inadequate or [28] 1 ineffective to test the legality of his detention.’” Marrero v. Ives, 682 F.3d 1190 , [2] 1192 (9th Cir. 2012) (citation omitted). [3] In Jones, the Supreme Court rejected the contention that § 2255 was [4] 5 inadequate or ineffective for purposes of the savings clause “when AEDPA’s 6 second-or-successive restrictions barred a prisoner from seeking relief based on [7] a newly adopted narrowing interpretation of a criminal statute that circuit [8] precedent had foreclosed at the time of the prisoner’s trial, appeal, and first § [9] 10 2255 motion.” Jones, 143 S. Ct. at 1868. 11 In the Petition, Petitioner argues that his conviction and sentence under 18 [12] U.S.C. 924(c)(1) must be vacated because his conviction for second degree [13] murder does not qualify as a “crime of violence” after Borden v. United States, [15] 141 S. Ct. 1817 (2021). Under Jones, Petitioner cannot avail himself of the 16 savings clause. [17] Moreover, Petitioner’s argument is foreclosed in the Ninth Circuit by United [18] States v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc). The Ninth Circuit [19] 20 applied Borden and concluded that “a conviction for second-degree murder 21 pursuant to § 1111(a) constitutes a crime of violence because murder is the [22] unlawful killing of a human being with malice aforethought, see 18 U.S.C. § 23 1111(a), and to kill with malice aforethought means to kill either deliberately or [24] 25 recklessly with extreme disregard for human life.” Id. at 1093. “A § 1111(a) 26 conviction qualifies as a crime of violence because a defendant who acts with the [27] requisite mens rea to commit second-degree murder necessarily employs force [28] 1 | ‘against the person or property of another,’ and rather than acting with ordinary 2 recklessness, the defendant acts with recklessness that rises to the level of [3] 4 extreme disregard for human life.” /d. The court explained that, whereas criminal 5 || homicide constitutes manslaughter when it is committed recklessly, criminal 6 | homicide constitutes murder when “it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.” Id. at [8] 9 1094 (citation omitted). “[S]econd-degree murder qualifies as a crime of violence 10 | Pursuant to the elements clause of § 924(c)(3).” /d. at 1096. The Eighth Circuit 11 | has concluded that attempted second degree murder qualifies as a crime of V2 violence. See United States v. Matthews, 25 F.4th 601, 603-04 (8th Cir. 2022). [13] IV [14] 15 ORDER 16 | IT IS THEREFORE ORDERED that the Petition for Writ of Habeas Corpus is 17 dismissed without prejudice based on lack of jurisdiction. [19] 20 Lo L/ /—— 21 | Dated: February 7, 2024 Hon. Fred W. Slaughter 22 UNITED STATES DISTRICT JUDGE